[Senate Executive Report 108-10]
[From the U.S. Government Printing Office]
108th Congress Exec. Rpt.
SENATE
2nd Session 108-10
======================================================================
UNITED NATIONS CONVENTION ON THE LAW
OF THE SEA
_______
March 11, 2004
_______
Mr. Lugar from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 103-39]
The Committee on Foreign Relations, to which was referred
the United Nations Convention on the Law of the Sea and the
Agreement Relating to the Implementation of Part XI on the
United Nations Convention on the Law of the Sea, with Annex
(Treaty Doc. 103-39), having considered the same reports
favorably thereon with declarations and understandings as
indicated in the resolution of advice and consent, and
recommends that the Senate give its advice and consent to
accession to the Convention and ratification of the Agreement
as set forth in this report and the accompanying resolution of
advice and consent to ratification.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary of Key Provisions of the Convention and Implementing
Agreement........................................................2
IV. Implementing Legislation.........................................6
V. Committee Action.................................................6
VI. Committee Recommendation and Comments............................6
VII. Text of Resolution of Advice and Consent to Ratification........16
VIII.Annex I--Letter from State Department Legal Adviser William H.
Taft, IV to Chairman Lugar, dated March 1, 2004.................22
IX. Annex II--Hearings on the U.N. Convention on the Law of the Sea
(Treaty Doc. 103-39), October 14 and 21, 2003...................23
I. Purpose
The Convention, together with the related Agreement on
Implementing Part XI of the Convention, establishes a
comprehensive set of rules governing the uses of the world's
oceans, including the airspace above and the seabed and subsoil
below. It provides for jurisdiction, rights, and duties among
States that carefully balance the interests of States in
controlling activities off their own coasts and the interests
of all States in protecting the freedom to use the oceans
without undue interference. Among the central issues addressed
by the Convention and Implementing Agreement are navigation and
overflight of the oceans, exploitation and conservation of
ocean-based resources, protection of the marine environment,
and marine scientific research.
II. Background
The Convention and Implementing Agreement are the product
of over two decades of effort, led by the United States, to
conclude a universally accepted treaty on the law of the sea. A
widely ratified comprehensive law of the sea treaty has been a
bipartisan goal of successive U.S. administrations for decades;
the Congress endorsed this goal in the 1980 Deep Seabed Hard
Mineral Resources Act. The Convention was negotiated under the
auspices on the Third United Nations Conference on the Law of
the Sea, which opened in 1973 and closed in December 1982 with
the conclusion of the Convention.
Upon the adoption of the Convention in 1982, the United
States and other industrialized nations declined to sign or to
ratify the Convention, though they supported most of its
provisions, because they could not accept the regime it
established to govern deep seabed mining in areas beyond
national jurisdiction. Notwithstanding his decision that the
United States would not sign the Convention, President Reagan
issued a statement of United States oceans policy in March 1983
indicating that the United States would accept and act in
accordance with the Convention's balance of interests relating
to the traditional uses of the oceans, and this has remained
U.S. policy since that time.
In the early 1990s, efforts were made to renegotiate the
deep seabed mining provisions of the Convention that had
prevented the United States and others from becoming parties to
the Convention. These efforts culminated in the 1994
Implementing Agreement. That agreement restructured the
Convention's deep seabed mining regime in ways that met the
objections of the United States and other industrialized
nations. The United States signed the Implementing Agreement on
July 29, 1994, and President Clinton submitted it together with
the Convention to the Senate for its advice and consent on
October 7, 1994. At present, 145 countries are parties to the
Convention and 114 countries are parties to the Implementing
Agreement.
III. Summary of Key Provisions of the Convention and Implementing
Agreement
A detailed article-by-article discussion of the Convention
and Implementing Agreement may be found in the September 23,
1994 Letter of Submittal from the Secretary of State to the
President, which is reprinted in full in Senate Treaty Document
No. 103-39. The Bush administration has confirmed its view
that, generally, the Letter of Submittal appropriately analyzes
and interprets the Convention, noting that the declarations and
understandings in the resolution of advice and consent reported
by the committee and endorsed by the administration further
refine the analysis and interpretation contained in the Letter
of Submittal, and that these declarations and understandings
will prevail in the case of any inconsistency with the Letter
of Submittal. The Executive Branch's views on particular
provisions of the Convention and the Agreement are also found
in testimony and responses to questions for the record at the
committee's October 21, 2003 hearing. These are contained in
the hearing record included as part of this report.
In general, the Convention reflects a careful balance
between the interests of the international community in
maintaining freedom of navigation and those of coastal States
in their offshore areas. The United States has important
interests in both respects. As the world's preeminent maritime
power, the United States has a vital interest in freedom of
navigation to ensure that our military has the mobility it
needs to protect U.S. security interests worldwide, as well as
to facilitate the transport of goods in international trade. In
2003, over 28 percent of U.S. exports were shipped on the
oceans, amounting to over $200 billion in exports. As a major
coastal State, the United States has substantial interests in
developing, conserving, and managing the vast resources of the
oceans off our coasts, in protecting the marine environment,
and in preventing activity off our coasts that threatens the
safety and security of Americans. Preserving the careful
balance the Convention strikes ensuring protection of these
various interests is of great importance to the United States.
A summary of the key provisions of the Convention and
Implementing Agreement is set forth below.
MARITIME ZONES
The Convention establishes a jurisdictional regime for the
world's oceans based on a series of zones defined by reference
to distance from a State's coast. Under Part II of the
Convention, a State may claim as its territorial sea an area up
to 12 nautical miles (nm) from its coast. A State's territorial
sea is subject to the State's sovereignty. Beyond 12 nm and up
to 24 nm from its coast, a State may claim a contiguous zone in
which the coastal State may exercise the limited control
necessary to prevent or punish infringement of its customs,
fiscal, immigration, or sanitary laws and regulations in its
territory or territorial sea. Beyond its territorial sea, Part
V of the Convention provides that a State may claim an area up
to 200 nm from its coast as an exclusive economic zone (EEZ) in
which it enjoys sovereign rights for the purpose of exploring,
exploiting, conserving and managing living and non-living
natural resources, as well as jurisdiction as provided for in
the Convention with respect to, inter alia, marine scientific
research and the protection and preservation of the marine
environment. Areas beyond 200 nm from a State's coastline are
open to all uses and are not subject to the jurisdiction of any
State. The Convention establishes rules for drawing baselines
to be used in measuring the distances from a State's coast that
define these various zones.
CONTINENTAL SHELF
Part VI of the Convention provides that a coastal State
exercises sovereign rights for the purpose of exploring and
exploiting the natural resources of its continental shelf,
which comprises the seabed and subsoil of the submarine areas
that extend beyond the territorial sea throughout the natural
prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 nm from the
baselines where the outer edge of the continental margin does
not extend to that distance. The natural resources of the shelf
consist of the mineral and other non-living resources of the
seabed and subsoil, together with the living organisms
belonging to sedentary species. The Convention establishes
rules defining the continental shelf, as well as an expert
body, the Commission on the Limits of the Continental Shelf, to
consider and make recommendations to coastal States on matters
related to the establishment of the outer limit of their
continental shelf beyond 200 nm. If the coastal State agrees,
the shelf limits set by that State on the basis of the
recommendations are final and binding, thus providing important
stability and certainty to these claims. Under Part XI of the
Convention (see below), the seabed and ocean floor and subsoil
thereof beyond national jurisdiction are governed by an
international authority established by the Convention, and no
State may claim or exercise sovereignty over the resources
thereof, though States or individuals may exercise certain
rights with regard to minerals in accordance with Part XI and
the Implementing Agreement.
FREEDOM OF NAVIGATION AND OVERFLIGHT
The Convention provides protections for critical freedoms
of navigation and overflight of the world's oceans. These
include the prohibition of territorial sea claims beyond 12 nm
and the express protection for and accommodation of passage
rights through the territorial sea and archipelagic waters,
including transit passage through straits and archipelagic
sealanes passage. They also include the express protection for
and accommodation of the high seas freedoms of navigation,
overflight, laying of submarine cables and pipelines, and
related uses beyond the territorial sea, including areas where
there are coastal State sovereign rights and jurisdiction, such
as the EEZ and the continental shelf. United States Armed
Forces rely on these navigation and overflight rights daily,
and their protection is of paramount importance to U.S.
national security.
PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT
The Convention includes numerous provisions related to
protection of the marine environment. For example, Part XII
addresses multiple sources of marine pollution, including, for
example, pollution from vessels, seabed activities, ocean
dumping, and land-based sources, and promotes continuing
improvement in the health of the world's oceans. Depending upon
the source of marine pollution and the particular maritime zone
in question, Part XII sets forth various obligations and
authorizations relating to coastal States, flag States, and/or
all States (such as to develop international standards). The
provisions encourage Parties to work together to address issues
of common and pressing concern. Another example is Article 21
which includes important rights for coastal States with regard
to protection of the environment and natural resources in the
territorial sea.
LIVING MARINE RESOURCES
Most living marine resources of importance to coastal
States are located within 200 nm from coasts. The Convention's
authorization of the establishment of EEZs, and provision for
the sovereign rights and management authority of coastal States
over living resources within such EEZs, bring such living
marine resources under the jurisdiction of coastal States. The
Convention provides that each coastal State has the sovereign
right to make determinations under the Convention related to
utilization, conservation and management of living resources
within its EEZ. The Convention also includes specific
provisions for the conservation of marine mammals. While the
Convention preserves the freedom to fish on the high seas, it
makes that freedom subject to certain obligations, including
the duty to cooperate in the conservation and management of the
living resources in high seas areas.
MARINE SCIENTIFIC RESEARCH
Part XIII of the Convention recognizes the critical role of
marine scientific research in understanding oceanic processes
and in informed decisionmaking about uses of the oceans.
Following a maritime zone approach, it provides coastal States
with greater rights to regulate marine scientific research in
their territorial seas than in the EEZ and on the continental
shelf. All States have the right to conduct such research
freely in high seas areas. Part XIII also provides for
international cooperation to promote marine scientific
research.
DEEP SEABED MINING
Part XI of the Convention, as fundamentally modified by the
Agreement Relating to the Implementation of the Convention,
establishes a regime governing the exploration and exploitation
of the seabed, ocean floor and subsoil thereof beyond the
limits of national jurisdiction. As modified, Part XI meets the
objections raised by the United States and other industrialized
countries concerning the original Convention. It is expected to
provide a stable and internationally recognized framework in
which mining can proceed in response to demand in the future
for deep seabed minerals. It establishes an international
organization, the International Seabed Authority, to administer
the regime. The Authority includes a Council, which acts as its
principal executive body; an Assembly, made up of all of States
that are members of the Authority; and a Secretariat. The
Council has primary responsibility for supervising the
implementation of the seabed mining regime, including approving
plans of work for exploration and exploitation of mineral
resources and overseeing compliance with such plans. The
Assembly has responsibility, on the basis of recommendations
made by other Assembly bodies, to assess contributions, give
final approval to rules and regulations and to the budget, and
to decide on the sharing of revenues to the Authority from
mining.
Responding to a principal U.S. objection to the Convention
as it was originally concluded in 1982, the Agreement provides
for a decisionmaking structure for the Authority that protects
U.S. interests. Under Section 3(15)(a) of the Annex to the
Implementing Agreement, the United States is guaranteed a seat
on the Council in perpetuity. As a general rule, the Council
and Assembly take all decisions by consensus, though provisions
are made for voting in the event consensus cannot be reached.
Relevant voting rules prevent the Authority from adopting
substantive decisions governing the administration of the deep
seabed mining regime, or decisions having financial or
budgetary implications, over the objection of the United
States. In response to other U.S. objections, the Agreement
also eliminates mandatory technology transfer provisions and
non-market based controls on the levels of mineral production
from the deep seabed that were part of the Convention as
originally concluded.
IV. Implementing Legislation
The United States has acted in accordance with the
Convention's balance of interests relating to the traditional
uses of the oceans since a 1983 statement issued by President
Reagan making this U.S. policy. As explained in the March 1,
2004 letter from State Department Legal Adviser William H.
Taft, IV to Chairman Lugar attached as an annex to this report,
U.S. law and practice are already generally compatible with the
Convention and the United States does not need to enact new
legislation upon accession to supplement or modify existing
U.S. law. The one area in which implementing legislation would
be necessary at some point after U.S. accession is legislation
to enforce decisions of the Sea-Bed Disputes Chamber, which is
addressed below in connection with understanding 22 of the
resolution of advice and consent.
V. Committee Action
The committee held public hearings on the Convention and
the Implementing Agreement on October 14, 2003 and October 21,
2003, where it heard testimony from experts on oceans law and
policy, former U.S. negotiators of the Convention,
representatives of the Departments of State, Defense, and the
U.S. Coast Guard, and representatives of organizations
interested in oceans issues. (A transcript of this hearing and
questions and answers for the record may be found in Annex II
to this report.) On February 25, the committee considered the
Convention and Implementing Agreement and ordered them
favorably reported by a vote of 19-0, with the recommendation
that the Senate give its advice and consent to accession to the
Convention and ratification of the Implementing Agreement,
subject to declarations and understandings contained in the
resolution of advice and consent.
VI. Committee Recommendation and Comments
The committee recommends that the Senate advise and consent
to accession to the Convention and ratification of the
Implementing Agreement. The committee believes that the
Convention advances important U.S. interests in a number of
areas. It advances U.S. national security interests by
preserving the rights of navigation and overflight across the
world's oceans, on which our military relies to protect U.S.
interests around the world, and it enhances the protection of
these rights by providing binding mechanisms to enforce them.
It advances U.S. economic interests by enshrining the right of
the United States to explore and exploit the vast natural
resources of the oceans out to 200 miles from our coastline,
and of our continental shelf beyond 200 miles, and by
protecting freedom of navigation on the oceans over which more
than 28 percent of all U.S. exports and 48 percent of all U.S.
imports are transported. It advances U.S. interests in the
protection of the environment by creating obligations binding
on all States to protect and preserve the marine environment
from pollution from a variety of sources, and by establishing a
framework for further international action to combat pollution.
Becoming party to the Convention also advances the ability of
the United States to play a leadership role in global oceans
issues, including by allowing the United States to participate
fully in institutions created by the Convention such as the
International Seabed Authority, the Commission on the Limits of
the Continental Shelf, and the International Tribunal for the
Law of the Sea.
The committee also believes it important that U.S.
accession to the Convention be completed promptly. The
Convention comes open for amendment for the first time in
November 2004. As noted above, in negotiating the Convention,
the United States was successful in achieving a regime that
struck a careful balance in ensuring protection of many
important U.S. interests. If the United States is not party to
the Convention when it comes open for amendment, our ability to
protect the critically important balance of rights that we
fought hard to achieve in the Convention will be significantly
diminished. In addition, the Convention's Commission on the
Limits of the Continental Shelf will soon begin making
decisions on claims to continental shelf areas that could
affect the United States' own claims. Full U.S. participation
in this process requires us to be party to the Convention.
The Bush administration has expressed its strong support
for ratification of the Convention, as did the Clinton
administration before it. The committee has also received
statements in support of U.S. accession to the Convention from,
inter alia, the U.S. Commission on Oceans Policy (an official
body established by Congress), the American Petroleum
Institute, the International Association of Drilling
Contractors, the National Oceans Industries Association, the
National Marine Manufacturers Association, the Chamber of
Shipping of America, the U.S. Tuna Foundation, the Ocean
Conservancy, the World Wildlife Fund, the Humane Society of the
United States, the American Bar Association, the Council on
Ocean Law, and the U.S. Arctic Research Commission.
The committee has included a number of declarations,
understandings, and conditions in the resolution of advice and
consent. Article 309 of the Convention provides that no
reservations or exceptions may be made to the Convention unless
expressly permitted by other articles (such as with respect to
disputes settlement, see below). Article 310 provides that a
State may, however, make declarations or statements, however
phrased or named, with a view, inter alia, to the harmonization
of its laws and regulations with the provisions of the
Convention, provided they do not purport to modify the effect
of the Convention in their application to that State.
Section two of the resolution contains two declarations
relating to the dispute settlement procedures under the
Convention. The first declaration concerns the forum for
dispute settlement. A State, when adhering to the Convention or
thereafter, is able to choose, by written declaration, one or
more of the means for the settlement of disputes (i.e., the
International Tribunal for the Law of the Sea, the
International Court of Justice, arbitration under Annex VII, or
special arbitration under Annex VIII for certain disputes, such
as fisheries and marine scientific research). The declaration
states that the United States chooses special arbitration for
all the categories of disputes to which it may be applied and
arbitration for other disputes.
The second declaration concerns the exclusion of certain
categories of disputes from dispute settlement procedures. The
Convention permits a State to opt out of binding dispute
settlement procedures with respect to one or more enumerated
categories of disputes, namely disputes regarding maritime
boundaries between neighboring States, disputes concerning
military activities and certain law enforcement activities, and
disputes in respect of which the UN Security Council is
exercising the functions assigned to it by the UN Charter. The
declaration states that the United States elects to exclude all
three of these categories of disputes from binding dispute
settlement. With respect to disputes concerning military
activities, the declaration further states that U.S. consent to
accession is conditioned upon the understanding that, under
article 298(1)(b), each State Party has the exclusive right to
determine whether its activities are or were ``military
activities,'' and that such determinations are not subject to
review.
Section three of the resolution contains a series of
understandings and declarations addressing specific issues
raised by the Convention. The first five understandings relate
principally to freedoms of navigation and overflight and
related uses of the sea under the Convention. As noted above,
these rights and freedoms are of critical importance to the
U.S. military, and in particular its need for global mobility.
The first understanding states that nothing in the
Convention impairs the inherent right of self-defense or rights
during armed conflict, including any Convention provisions
referring to ``peaceful uses'' or ``peaceful purposes.'' This
understanding underscores the importance the United States
attaches to its right under international law to take
appropriate actions in self-defense or in times of armed
conflict, including, where necessary, the use of force.
The second, third, and fourth understandings address
navigational rights and freedoms in various maritime zones
under the Convention. The second understanding focuses on
innocent passage in the territorial sea, the third focuses on
transit passage and archipelagic sea lanes passage under Parts
III and IV of the Convention, and the fourth focuses on high
seas freedoms of navigation and overflight in the exclusive
economic zone. Collectively, these understandings confirm that
various activities historically undertaken by the U.S. Armed
Forces in these zones are consistent with the rights and
freedoms set forth in the Convention.
Several points are worth noting in particular in connection
with the second understanding regarding innocent passage.
Paragraph 2(B) states that article 19(2) of the
Convention contains an exhaustive list of activities
that render passage non-innocent. The committee
understands that the list of activities in no way
narrows the right of innocent passage the United States
currently enjoys under the 1958 Territorial Sea
Convention and customary international law. On the
contrary, the Convention improves upon the 1958
Convention's innocent passage regime from the
perspective of U.S. navigational mobility by
establishing a more objective standard for the meaning
of ``innocent'' passage based on specifically
enumerated activities, and by setting forth an
exhaustive list of those activities that will render
passage not ``innocent.'' (Article 20 provides that
submarines and other underwater vehicles are required
to navigate on the surface and to show their flag in
order to enjoy the right of innocent passage; however,
failure to do so is not characterized as inherently not
``innocent.'') The committee further understands that,
as in the case of the 1958 Convention, the innocent
passage provisions of the Convention set forth
conditions for the enjoyment of the right of innocent
passage in the territorial sea but do not prohibit or
otherwise affect activities that are not entitled to
that right.
Paragraph 2(A) states the U.S. understanding that,
among other things, the ``purpose'' of a ship is not
relevant to the enjoyment of innocent passage, and
paragraph 2(C) states the U.S. understanding that a
determination of non-innocence cannot be made, among
other things, on the basis of a ship's ``purpose.'' The
reference to ``purpose'' is intended to make clear, for
example, that a ship navigating for the sole purpose of
exercising its right of innocent passage is entitled to
the right of innocent passage but that would not
preclude a ship's purpose from being taken into account
in assessing whether that ship posed a threat to use
force within the meaning of article 19(2)(a).
Understanding 2(D) reiterates the longstanding U.S.
position that the Convention does not authorize a
coastal State to condition the exercise of the right of
innocent passage by any ships, including warships, on
the giving of prior notification to or the receipt of
prior permission from the coastal State. The
Convention, and this understanding, do not, however,
affect the ability of Parties to the Convention to
agree among themselves to a prior notification regime.
For example, such regimes have been negotiated under
the auspices of the International Maritime
Organization. In this regard, regulation V/11 (ship
reporting systems) and regulation V/19.2.4 (automatic
identification systems) of the regulations annexed to
the International Convention for the Safety of Life at
Sea, 1974, as amended should be noted.
The fifth understanding concerns marine scientific
research. Part XIII of the Convention addresses the rights of
coastal States to require consent for marine scientific
research undertaken in marine areas under their jurisdiction.
The understanding indicates that the term ``marine scientific
research'' does not include certain activities, such as
military activities, including military surveys. It is an
illustrative list; therefore, there are other activities, such
as operational oceanography, that are also not considered
marine scientific research.
The sixth understanding expresses the U.S. view that those
declarations and statements of other States Parties that
purport to limit navigation, overflight, or other rights and
freedoms in ways not permitted by the Convention (such as those
not in conformity with the Convention's provisions relating to
straits used for international navigation) contravene the
Convention (specifically article 310, which does not permit
such declarations and statements). While it is not legally
necessary for the United States to comment on declarations and
statements that are inconsistent with the Convention, given
that reservations are not permitted under the Convention, the
committee believes it appropriate and desirable to make clear
the U.S. position on such declarations and statements.
The resolution next contains a series of understandings
addressing principally environment-related aspects of the
Convention, including provisions of the Convention addressing
marine pollution enforcement. Over the past decade or more, the
Executive Branch has vigorously enforced U.S. marine pollution
laws consistent with the Convention's provisions relevant to
foreign flag vessels. In light of substantial experience
gained, the Executive Branch has proposed, and the committee
agrees, that it would be desirable to highlight certain aspects
of the Convention's provisions, including to harmonize certain
terminology as between the Convention and U.S. law.
The seventh understanding addresses an unmeritorious
assertion that has occasionally been made in relation to
various U.S. laws that restrict the import of goods to promote
observance of a particular environmental or conservation
standard, such as the protection of dolphins or sea turtles. It
confirms that the Convention in no way limits a State's ability
to prohibit or restrict imports in order to, among other
things, promote or require compliance with environmental and
conservation laws, norms, and objectives.
The eighth understanding states that certain Convention
provisions apply only to a particular source of marine
pollution (namely, pollution from vessels, as referred to in
article 211) and not other sources of marine pollution, such as
dumping. The ninth understanding harmonizes the Convention's
``clear grounds'' standard in articles 220 and 226 with the
U.S. ``reasonable suspicion'' standard. The tenth understanding
concerns article 228(2), which provides for a three-year
statute of limitations concerning certain marine pollution
proceedings. The understanding sets forth the limits of the
applicability of the provision. As under current U.S. law,
fraudulent concealment from an officer of the United States of
pertinent information tolls the statute of limitations.
The eleventh understanding addresses the scope of article
230, which governs the use of monetary penalties in cases
involving pollution of the marine environment by foreign
vessels. The understanding harmonizes aspects of article 230
with U.S. law and practice for the enforcement of pollution
laws. The reference to ``corporal punishment'' in the
understanding is not addressed to any U.S. laws authorizing
such punishment with regard to ship master and sailors (the
committee is unaware of any such laws); rather it is aimed at
other States that may provide for such punishment. The article
thus provides certain protections for U.S. ship masters and
sailors abroad.
The twelfth understanding clarifies that the marine
pollution provisions of the Convention, specifically sections 6
and 7 of Part XII, do not limit a State's authority to impose
penalties, among other things, for non-pollution offenses (such
as false statement violations under 18 U.S.C. 1001) or for
marine pollution violations that take place in a State's ports,
rivers, harbors, or offshore terminals.
The thirteenth understanding provides that the Convention
confirms and does not constrain the longstanding right of a
State to impose and enforce conditions for the entry of foreign
vessels into its ports, rivers, harbors, or offshore terminals.
This sovereign right enables States to address important
concerns, such as security and pollution, regardless of whether
action to address such concerns has been or will be taken at
the international level and regardless of whether or not the
condition is directly related to the ports, rivers, harbors, or
offshore terminals. These conditions might also apply as a
matter of port departure and compliance with such conditions
can be considered in approving subsequent port entries. The
understanding contains illustrative examples of an
environmental nature, namely a requirement that ships exchange
ballast water beyond 200 nautical miles from shore and a
requirement that tank vessels carrying oil be constructed with
double hulls. Another example of the U.S. exercise of this
right is the requirement for prior notice of arrival in port of
foreign vessels.
The fourteenth understanding relates to article 21(2) of
the Convention, which provides that the laws that a coastal
State may adopt relating to innocent passage through the
territorial sea shall not apply to the ``design, construction,
manning or equipment'' of foreign ships unless they are giving
effect to ``generally accepted international rules or
standards.'' This understanding makes clear that certain types
of measures would not constitute measures applying to ``design,
construction, manning or equipment'' of foreign ships and would
therefore not be limited by this provision. The list is
illustrative, not exhaustive.
The fifteenth understanding addresses the issue of
potential marine pollution from industrial operations (such as
seafood processing) on board a foreign vessel. This
understanding makes clear that the Convention supports a
coastal State's regulation of discharges into the marine
environment resulting from such operations. A variety of
provisions in the Convention might be applicable depending upon
the circumstances. It should be noted that the United States
currently regulates discharges from seafood processing
operations on board foreign vessels in its territorial sea and
EEZ.
Similarly, the sixteenth understanding addresses the issue
of invasive species, which is a major environmental issue
facing many States in the United States. This understanding
affirms that the Convention supports the ability of a coastal
State, such as the United States, to exercise its domestic
authority to regulate the introduction into the marine
environment of alien or new species. A variety of Convention
provisions might be applicable, depending upon the
circumstances, for example, articles 21, 56, 196, or 211. The
ability to rely on various authorities is important to assure
that the United States and other coastal States have
appropriate flexibility to fully address this problem.
The seventeenth understanding addresses fisheries
management issues. The United States implements the living
marine resource provisions of the Convention through a variety
of domestic laws. For fisheries issues, these provisions are
implemented primarily through the Magnuson-Stevens Fishery
Conservation and Management Act, 16 U.S.C. 1801 et seq.
(Magnuson-Stevens Act). Article 56(1)(a) of the Convention
establishes that, in the exclusive economic zone, a coastal
State has sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural resources,
whether living or non-living. In the United States, such
measures have included fisheries management pursuant to the
Magnuson-Stevens Act, the establishment of no-anchoring areas
to protect coral reefs, and the creation of marine sanctuaries
under the National Marine Sanctuaries Act. This provision also
provides authority to address such threats as ship strikes of
cetaceans.
The Magnuson-Stevens Act provides a national framework for
conserving and managing marine fisheries within the U.S. EEZ.
The Act is completely consistent with the Convention and
enables the United States to exercise its rights and implement
its fisheries conservation and management obligations under
articles 61 and 62 of the Convention. The Magnuson-Stevens Act
provides the United States with the authority to make
determinations related to utilization, conservation and
management of living resources within its EEZ, including
defining optimum yield and allowable catch, considering effects
on non-target species, and determining what, if any, surplus
may exist. Articles 61 and 62 provide that the coastal State
has the exclusive right to make these determinations. In
particular, under both the Magnuson-Stevens Act and article
62(2), the United States has no obligation to give another
State access to fisheries in its EEZ unless, after determining
the optimum yield and allowable catch under the Act, the United
States has determined both that there is surplus over and above
the allowable catch and that the coastal State does not or will
not have the capacity to harvest that surplus. In such event,
access may be provided under reasonable terms and conditions
established by the coastal State. The Magnuson-Stevens Act and
other legislation provide the United States with the authority
to cooperate with other States in managing fisheries resources
that are highly migratory or that straddle jurisdictional
lines, in order to comply with obligations under articles 63,
64, 118, and 119. Consistent with article 297(3), binding
dispute settlement does not apply to disputes relating to a
coastal State's discretionary powers for determining the
allowable catch, its harvesting capacity, the allocation of
surpluses to other States, and the terms and conditions
established in its conservation and management laws and
regulations.
The eighteenth understanding concerns article 65, which
addresses marine mammals. In part, article 65 provides that the
Convention does not restrict the right of a coastal State or
the competence of an international organization to take
stricter measures than those provided in the Convention. With
respect to this provision, the understanding notes that it lent
direct support to the establishment of the international
moratorium on commercial whaling that is in place and that it
lends current support to the creation of sanctuaries and other
conservation measures. Article 65 also provides that, in the
case of cetaceans, States shall work through appropriate
international organizations for their conservation, management
and study. The understanding indicates, with respect to this
provision, that such cooperation applies not only to large
whales but to all cetaceans.
The nineteenth understanding makes clear that the term
``sanitary laws and regulations'' in article 33 is not limited
to the transmittal of human illnesses, but may include, for
example, laws and regulations to protect human health from
pathogens being introduced into the territorial sea. This
example is non-exhaustive.
The next five understandings and declarations generally
address procedural and constitutional matters.
The twentieth understanding relates to decisionmaking in
the Council, the executive organ of the International Sea-Bed
Authority that has substantial decisionmaking authority.
Article 161(8)(d) provides for certain decisions of the Council
to be taken by consensus. The United States will, by virtue of
the 1994 Agreement, have a permanent seat on the Council. As
such, the United States will be in a position to block
consensus in the Council on decisions subject to consensus
decisionmaking. The Convention, as modified by the Agreement,
is structured to ensure consensus decisionmaking for the most
significant decisions, including decisions resulting in binding
substantive obligations on States Parties. The understanding
reinforces the negotiated agreement that decisions adopted by
procedures other than the consensus procedure in article
161(8)(d) will involve administrative, institutional or
procedural matters and will not result in binding substantive
obligations on the United States.
The twenty-first understanding addresses certain decisions
of the Assembly, the primary body of the International Sea-Bed
Authority. Specifically, the Assembly, under article 160(2)(e),
assesses the contributions of members to the administrative
budget of the Authority until the Authority has sufficient
income from other sources to meet its administrative expenses.
Section 3(7) of the Annex to the 1994 Agreement provides that
``[d]ecisions of the Assembly . . . having financial or
budgetary implications shall be based on the recommendations of
the Finance Committee.'' Under Section 9(3) of the Annex to the
1994 Implementing Agreement seats are guaranteed on the Finance
Committee for ``the five largest contributors to the
administrative budget of the Authority'' until the Authority
has sufficient funds other than assessed contributions to meet
its administrative expenses. Because such contributions are
based on the United Nations scale of assessments (and because
the United States is the largest contributor on that scale),
the United States will have a seat on the Finance Committee so
long as the Authority supports itself through assessed
contributions. The understanding ties these related provisions
together to make clear that no assessed contributions could be
decided by the Assembly without the agreement of the United
States in the Finance Committee.
The twenty-second declaration addresses article 39 of Annex
VI of the Convention, which provides for decisions of the Sea-
Bed Disputes Chamber to be enforceable in the territories of
the States Parties in the same manner as judgments or orders of
the highest court of the State Party in whose territory the
enforcement is sought. Because of potential constitutional
concerns regarding direct enforceability of this provision in
U.S. courts and because article 39 does not require any
particular manner in which Chamber decisions must be made
enforceable, the declaration provides that, for the United
States, such decisions shall be enforceable only in accordance
with procedures established by implementing legislation and
that such decisions shall be subject to such legal and factual
review as is constitutionally required and without precedential
effect in any court of the United States. Given the current
undeveloped state of deep seabed mining, such legislation would
not be necessary before U.S. accession to the Convention.
The twenty-third understanding focuses on the adoption of
amendments to section 4 of Annex VI of the Convention, which
relates to the Sea-Bed Disputes Chamber, which is established
under the Convention to resolve certain disputes arising in
connection with deep sea bed mining. The basic rules for
amending Annex VI are set forth in section 5 of that Annex. It
is clear from article 41 of that Annex, with respect to
amendments to Annex VI other than to section 4, that the United
States could block adoption of such an amendment (either
through the ability to block afforded by article 313(2) or
through the consensus procedure at a conference of the States
Parties). Regarding amendments to section 4 of Annex VI,
related to the Sea-Bed Disputes Chamber, article 41(2) of Annex
VI provides that such amendments may be adopted only in
accordance with article 314, which in turn requires that such
amendments be approved by the Assembly following approval by
the Council. Article 314 does not specify the decisionmaking
rule by which the Council must approve the amendment before the
Assembly may adopt it; article 161(8), which lists certain
categories of decisions and their corresponding decisionmaking
rules, also does not specifically address adoption of
amendments to section 4 of Annex IV. Turning to article
161(8)(f) to determine the default rule for decisions within
the authority of the Council for which the decisionmaking rule
is not specified, the Council is to decide ``by consensus''
which subparagraph of article 161(8) will apply. Section 3 of
the Annex to the 1994 Agreement conflates subparagraphs (b) and
(c) of article 161(8), but it does not affect situations where
the Convention, as in the case of 161(8)(f), provides for
decision by consensus in the Council. Because the analysis
reaches the same result as, but is not as straightforward as,
the case of amendments to section 4 of Annex VI as it is for
other amendments to Annex VI, the committee agrees with the
Executive Branch that an understanding on this point is
desirable.
The twenty-fourth declaration relates to the question of
whether the Convention and Agreement are self-executing in the
United States. The committee has included a declaration that
the Convention and Agreement, including amendments thereto and
rules, regulations, and procedures thereunder, are not self-
executing for the United States, with the exception of
provisions related to privileges and immunities (articles 177-
183, article 13 of Annex IV, and article 10 of Annex VI).
Consistent with the view of both the committee and the
Executive Branch, this declaration states that the Convention
and Agreement do not create private rights of action or other
enforceable legal rights in U.S. courts (e.g., for persons
accused of criminal violations of U.S. laws, including
environmental pollution and general criminal laws). As stated
in the March 1, 2004 letter from State Department Legal Adviser
William H. Taft, IV to Chairman Lugar attached as an annex to
this report, the United States, as a party, would be able to
implement the Convention through existing laws, regulations,
and practices (including enforcement practices), which are
consistent with the Convention and which would not need to
change in order for the United States to meet its Convention
obligations. Except as noted in connection with declaration
twenty-two above, the United States does not need to enact any
new legislation to supplement or modify existing U.S. law.
Section four of the resolution contains five conditions
that relate to procedures within the United States for
considering amendments proposed to be made to the Convention.
The first three conditions provide for the President to inform
and consult with the Foreign Relations Committee about proposed
amendments to the Convention. The fourth condition provides
that all amendments to the Convention, other than amendments
under article 316(5) of the Convention of a technical or
administrative nature, shall be submitted by the President to
the Senate for its advice and consent. The committee expects
that any such technical or administrative amendments would not
impose substantive obligations upon the United States.
The fifth condition relates to article 316(5) of the
Convention, which provides for any amendment relating
exclusively to activities in the Area (which is defined in
article 1(1)(1)) and any amendment to Annex VI to enter into
force for all States Parties one year following the deposit of
instruments of ratification or accession by three fourths of
the States Parties. There is thus a possibility that such an
amendment, if adopted (which would require the consent or
acquiescence of the U.S. Executive Branch via the U.S.
representative on the Council), could enter into force for the
United States without U.S. ratification. The declaration
provides that the United States will take all necessary steps
under the Convention to ensure that amendments subject to this
procedure are adopted in conformity with the treaty clause in
Article 2, Section 2 of the Constitution. This might involve
not joining in consensus if an amendment were of such a nature
that it was constitutionally imperative that it receive Senate
advice and consent before binding the United States. The
declaration highlights the amendment procedure but does not
specifically address under what circumstances a constitutional
issue might arise.
VII. Text of Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO DECLARATIONS AND
UNDERSTANDINGS.
The Senate advises and consents to the accession to the
United Nations Convention on the Law of the Sea, with annexes,
adopted on December 10, 1982 (hereafter in this resolution
referred to as the ``Convention''), and to the ratification of
the Agreement Relating to the Implementation of Part XI of the
United Nations Convention on the Law of the Sea, with annex,
adopted on July 28, 1994 (hereafter in this resolution referred
to as the ``Agreement'') (T.Doc.103-39), subject to the
declarations of section 2, to be made under articles 287 and
298 of the Convention, the declarations and understandings of
section 3, to be made under article 310 of the Convention, and
the conditions of section 4.
SEC. 2. DECLARATIONS UNDER ARTICLES 287 AND 298.
The advice and consent of the Senate under section 1 is
subject to the following declarations:
(1) The Government of the United States of America
declares, in accordance with article 287(1), that it
chooses the following means for the settlement of
disputes concerning the interpretation or application
of the Convention:
(A) a special arbitral tribunal constituted
in accordance with Annex VIII for the
settlement of disputes concerning the
interpretation or application of the articles
of the Convention relating to (1) fisheries,
(2) protection and preservation of the marine
environment, (3) marine scientific research,
and (4) navigation, including pollution from
vessels and by dumping; and
(B) an arbitral tribunal constituted in
accordance with Annex VII for the settlement of
disputes not covered by the declaration in
subparagraph (A).
(2) The Government of the United States of America
declares, in accordance with article 298(1), that it
does not accept any of the procedures provided for in
section 2 of Part XV (including, inter alia, the Sea-
Bed Disputes Chamber procedure referred to in article
287(2)) with respect to the categories of disputes set
forth in subparagraphs (a), (b), and (c) of article
298(1). The United States further declares that its
consent to accession to the Convention is conditioned
upon the understanding that, under article 298(1)(b),
each State Party has the exclusive right to determine
whether its activities are or were ``military
activities'' and that such determinations are not
subject to review.
SEC. 3. OTHER DECLARATIONS AND UNDERSTANDINGS UNDER ARTICLE 310.
The advice and consent of the Senate under section 1 is
subject to the following declarations and understandings:
(1) The United States understands that nothing in the
Convention, including any provisions referring to
``peaceful uses'' or ``peaceful purposes,'' impairs the
inherent right of individual or collective self-defense
or rights during armed conflict.
(2) The United States understands, with respect to
the right of innocent passage under the Convention,
that--
(A) all ships, including warships, regardless
of, for example, cargo, armament, means of
propulsion, flag, origin, destination, or
purpose, enjoy the right of innocent passage;
(B) article 19(2) contains an exhaustive list
of activities that render passage non-innocent;
(C) any determination of non-innocence of
passage by a ship must be made on the basis of
acts it commits while in the territorial sea,
and not on the basis of, for example, cargo,
armament, means of propulsion, flag, origin,
destination, or purpose; and
(D) the Convention does not authorize a
coastal State to condition the exercise of the
right of innocent passage by any ships,
including warships, on the giving of prior
notification to or the receipt of prior
permission from the coastal State.
(3) The United States understands, concerning Parts
III and IV of the Convention, that--
(A) all ships and aircraft, including
warships and military aircraft, regardless of,
for example, cargo, armament, means of
propulsion, flag, origin, destination, or
purpose, are entitled to transit passage and
archipelagic sea lanes passage in their
``normal mode'';
(B) ``normal mode'' includes, inter alia--
(i) submerged transit of submarines;
(ii) overflight by military aircraft,
including in military formation;
(iii) activities necessary for the
security of surface warships, such as
formation steaming and other force
protection measures;
(iv) underway replenishment; and
(v) the launching and recovery of
aircraft;
(C) the words ``strait'' and ``straits'' are
not limited by geographic names or categories
and include all waters not subject to Part IV
that separate one part of the high seas or
exclusive economic zone from another part of
the high seas or exclusive economic zone or
other areas referred to in article 45;
(D) the term ``used for international
navigation'' includes all straits capable of
being used for international navigation; and
(E) the right of archipelagic sea lanes
passage is not dependent upon the designation
by archipelagic States of specific sea lanes
and/or air routes and, in the absence of such
designation or if there has been only a partial
designation, may be exercised through all
routes normally used for international
navigation.
(4) The United States understands, with respect to
the exclusive economic zone, that--
(A) all States enjoy high seas freedoms of
navigation and overflight and all other
internationally lawful uses of the sea related
to these freedoms, including, inter alia,
military activities, such as anchoring,
launching and landing of aircraft and other
military devices, launching and recovering
water-borne craft, operating military devices,
intelligence collection, surveillance and
reconnaissance activities, exercises,
operations, and conducting military surveys;
and
(B) coastal State actions pertaining to these
freedoms and uses must be in accordance with
the Convention.
(5) The United States understands that ``marine
scientific research'' does not include, inter alia--
(A) prospecting and exploration of natural
resources;
(B) hydrographic surveys;
(C) military activities, including military
surveys;
(D) environmental monitoring and assessment
pursuant to section 4 of Part XII; or
(E) activities related to submerged wrecks or
objects of an archaeological and historical
nature.
(6) The United States understands that any
declaration or statement purporting to limit
navigation, overflight, or other rights and freedoms of
all States in ways not permitted by the Convention
contravenes the Convention. Lack of a response by the
United States to a particular declaration or statement
made under the Convention shall not be interpreted as
tacit acceptance by the United States of that
declaration or statement.
(7) The United States understands that nothing in the
Convention limits the ability of a State to prohibit or
restrict imports of goods into its territory in order
to, inter alia, promote or require compliance with
environmental and conservation laws, norms, and
objectives.
(8) The United States understands that articles 220,
228, and 230 apply only to pollution from vessels (as
referred to in article 211) and not, for example, to
pollution from dumping.
(9) The United States understands, with respect to
articles 220 and 226, that the ``clear grounds''
requirement set forth in those articles is equivalent
to the ``reasonable suspicion'' standard under United
States law.
(10) The United States understands, with respect to
article 228(2), that--
(A) the ``proceedings'' referred to in that
paragraph are the same as those referred to in
article 228(1), namely those proceedings in
respect of any violation of applicable laws and
regulations or international rules and
standards relating to the prevention, reduction
and control of pollution from vessels committed
by a foreign vessel beyond the territorial sea
of the State instituting proceedings; and
(B) fraudulent concealment from an officer of
the United States of information concerning
such pollution would extend the three-year
period in which such proceedings may be
instituted.
(11) The United States understands, with respect to
article 230, that--
(A) it applies only to natural persons aboard
the foreign vessels at the time of the act of
pollution;
(B) the references to ``monetary penalties
only'' exclude only imprisonment and corporal
punishment;
(C) the requirement that an act of pollution
be ``wilful'' in order to impose non-monetary
penalties would not constrain the imposition of
such penalties for pollution caused by gross
negligence;
(D) in determining what constitutes a
``serious'' act of pollution, a State may
consider, as appropriate, the cumulative or
aggregate impact on the marine environment of
repeated acts of pollution over time; and
(E) among the factors relevant to the
determination whether an act of pollution is
``serious,'' a significant factor is non-
compliance with a generally accepted
international rule or standard.
(12) The United States understands that sections 6
and 7 of Part XII do not limit the authority of a State
to impose penalties, monetary or nonmonetary, for,
inter alia--
(A) non-pollution offenses, such as false
statements, obstruction of justice, and
obstruction of government or judicial
proceedings, wherever they occur; or
(B) any violation of national laws and
regulations or applicable international rules
and standards for the prevention, reduction and
control of pollution of the marine environment
that occurs while a foreign vessel is in any of
its ports, rivers, harbors, or offshore
terminals.
(13) The United States understands that the
Convention recognizes and does not constrain the long-
standing sovereign right of a State to impose and
enforce conditions for the entry of foreign vessels
into its ports, rivers, harbors, or offshore terminals,
such as a requirement that ships exchange ballast water
beyond 200 nautical miles from shore or a requirement
that tank vessels carrying oil be constructed with
double hulls.
(14) The United States understands, with respect to
article 21(2), that measures applying to the ``design,
construction, equipment or manning'' do not include,
inter alia, measures such as traffic separation
schemes, ship routing measures, speed limits,
quantitative restrictions on discharge of substances,
restrictions on the discharge and/or uptake of ballast
water, reporting requirements, and record-keeping
requirements.
(15) The United States understands that the
Convention supports a coastal State's exercise of its
domestic authority to regulate discharges into the
marine environment resulting from industrial operations
on board a foreign vessel.
(16) The United States understands that the
Convention supports a coastal State's exercise of its
domestic authority to regulate the introduction into
the marine environment of alien or new species.
(17) The United States understands that, with respect
to articles 61 and 62, a coastal State has the
exclusive right to determine the allowable catch of the
living resources in its exclusive economic zone,
whether it has the capacity to harvest the entire
allowable catch, whether any surplus exists for
allocation to other States, and to establish the terms
and conditions under which access may be granted. The
United States further understands that such
determinations are, by virtue of article 297(3)(a), not
subject to binding dispute resolution under the
Convention.
(18) The United States understands that article 65 of
the Convention lent direct support to the establishment
of the moratorium on commercial whaling, supports the
creation of sanctuaries and other conservation
measures, and requires States to cooperate not only
with respect to large whales, but with respect to all
cetaceans.
(19) The United States understands that, with respect
to article 33, the term ``sanitary laws and
regulations'' includes laws and regulations to protect
human health from, inter alia, pathogens being
introduced into the territorial sea.
(20) The United States understands that decisions of
the Council pursuant to procedures other than those set
forth in article 161(8)(d) will involve administrative,
institutional, or procedural matters and will not
result in substantive obligations on the United States.
(21) The United States understands that decisions of
the Assembly under article 160(2)(e) to assess the
contributions of members are to be taken pursuant to
section 3(7) of the Annex to the Agreement and that the
United States will, pursuant to section 9(3) of the
Annex to the Agreement, be guaranteed a seat on the
Finance Committee established by section 9(1) of the
Annex to the Agreement, so long as the Authority
supports itself through assessed contributions.
(22) The United States declares, pursuant to article
39 of Annex VI, that decisions of the Seabed Disputes
Chamber shall be enforceable in the territory of the
United States only in accordance with procedures
established by implementing legislation and that such
decisions shall be subject to such legal and factual
review as is constitutionally required and without
precedential effect in any court of the United States.
(23) The United States--
(A) understands that article 161(8)(f)
applies to the Council's approval of amendments
to section 4 of Annex VI;
(B) declares that, under that article, it
intends to accept only a procedure that
requires consensus for the adoption of
amendments to section 4 of Annex VI; and
(C) in the case of an amendment to section 4
of Annex VI that is adopted contrary to this
understanding, that is, by a procedure other
than consensus, will consider itself bound by
such an amendment only if it subsequently
ratifies such amendment pursuant to the advice
and consent of the Senate.
(24) The United States declares that, with the
exception of articles 177-183, article 13 of Annex IV,
and article 10 of Annex VI, the provisions of the
Convention and the Agreement, including amendments
thereto and rules, regulations, and procedures
thereunder, are not self-executing.
SEC. 4. CONDITIONS.
(a) In General.--The advice and consent of the Senate under
section 1 is subject to the following conditions:
(1) Not later than 15 days after the receipt by the
Secretary of State of a written communication from the
Secretary-General of the United Nations or the
Secretary-General of the Authority transmitting a
proposal to amend the Convention pursuant to article
312, 313, or 314, the President shall submit to the
Committee on Foreign Relations of the Senate a copy of
the proposed amendment.
(2) Prior to the convening of a Conference to
consider amendments to the Convention proposed to be
adopted pursuant to article 312 of the Convention, the
President shall consult with the Committee on Foreign
Relations of the Senate on the amendments to be
considered at the Conference. The President shall also
consult with the Committee on Foreign Relations of the
Senate on any amendment proposed to be adopted pursuant
to article 313 of the Convention.
(3) Not later than 15 days prior to any meeting--
(A) of the Council of the International
Seabed Authority to consider an amendment to
the Convention proposed to be adopted pursuant
to article 314 of the Convention, or
(B) of any other body under the Convention to
consider an amendment that would enter into
force pursuant to article 316(5) of the
Convention,
the President shall consult with the Committee on
Foreign Relations of the Senate on the amendment and on
whether the United States should object to its
adoption.
(4) All amendments to the Convention, other than
amendments under article 316(5) of a technical or
administrative nature, shall be submitted by the
President to the Senate for its advice and consent.
(5) The United States declares that it shall take all
necessary steps under the Convention to ensure that
amendments under article 316(5) are adopted in
conformity with the treaty clause in article 2, section
2 of the United States Constitution.
(b) Inclusion of Certain Conditions in Instrument of
Ratification.--Conditions 4 and 5 shall be included in the
United States instrument of ratification to the Convention.
VIII. Annex I
The Legal Adviser
Department of State
Washington, March 1, 2004
The Honorable Richard G. Lugar,
Chairman,
Senate Committee on Foreign Relations,
United States Senate.
Dear Mr. Chairman:
I would like to take this opportunity to reiterate and
elaborate upon some of the matters addressed in my testimony to
the Committee regarding the 1982 Law of the Sea Convention
(``the Convention'').
Given that the United States is a party to the 1958 law of
the sea conventions, that the United States heavily influenced
the development of the Convention, and that U.S. policy since
1983 has been to act in accordance with the Convention's
provisions governing traditional uses of the oceans, U.S. law
and practice are already generally compatible with the
Convention. Except as noted below regarding deep sea-bed
mining, the United States does not need to enact new
legislation to supplement or modify existing U.S. law, whether
related to protection of the marine environment, human health,
safety, maritime security, the conservation of natural
resources, or other topics within the scope of the Convention.
The United States, as a party, would be able to implement the
Convention through existing laws, regulations, and practices
(including enforcement practices), which are consistent with
the Convention and which would not need to change in order for
the United States to meet its Convention obligations. For
example, U.S. law and practice for managing its natural
resources, including its fishery resources, are consistent with
the Convention's provisions with respect to the exploration,
utilization, conservation, and management of natural resources.
The one area in which implementing legislation would be
necessary at some point after U.S. accession is legislation to
enforce decisions of the Sea-bed Disputes Chamber, with respect
to which the Administration proposed a declaration for
inclusions in the Senate's resolution.
Finally, I note that, consistent with another declaration
proposed by the Administration, the Convention would not create
private rights of action or other enforceable rights in U.S.
courts, apart from its provisions regarding privileges and
immunities to be accorded to the Convention's institutions.
Sincerely,
William H. Taft, IV
IX. Annex II
HEARINGS ON
THE U.N. CONVENTION ON THE LAW OF THE SEA (TREATY DOC. 103-39)
----------
C O N T E N T S
TUESDAY, OCTOBER 14, 2003
Page
Department of Commerce, letter to Hon. Richard G. Lugar, Chairman,
Senate Foreign Relations Committee, from Theodore W.
Kassinger, General Counsel, providing Department views on
accession to the Law of the Sea Convention.................... 148
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening
statement..................................................... 26
McCain, Hon. John, U.S. Senator from Arizona, Chairman, Senate
Commerce Committee, statement submitted for the record........ 27
Moore, Prof. John Norton, director, Center for Oceans Law and
Policy, University of Virginia School of Law, Charlottesville,
VA............................................................ 49
Prepared statement............................................ 53
Oxman, Prof. Bernard H., University of Miami School of Law, Coral
Gables, FL, statement submitted for the record................ 35
Prueher, Admiral Joseph, USN (Ret.), former U.S. Commander-in-
Chief Pacific and former U.S. Ambassador to China, Virginia
Beach, VA..................................................... 48
Schachte, Rear Admiral William L., Jr., JAGC, USN (Ret.)
Charleston, SC................................................ 59
Prepared statement............................................ 62
Stevens, Hon. Ted, U.S. Senator from Alaska, Chairman, Senate
Appropriations Committee...................................... 28
Prepared statement............................................ 31
Watkins, Admiral James D., USN (Ret.), Chairman, U.S. Commission
on Ocean Policy, Washington, DC............................... 39
Prepared statement............................................ 42
TUESDAY, OCTOBER 21, 2003
PANEL I
Crowley, Rear Admiral John E., Jr., Chief Counsel and Judge
Advocate General, U.S. Coast Guard, Department of Homeland
Security, Washington, DC...................................... 107
Prepared statement............................................ 108
Responses to additional questions for the record from Senator
Biden....................................................... 170
Esper, Mark T., Deputy Assistant Secretary of Defense for
Negotiations Policy, Department of Defense, the Pentagon,
Washington, DC................................................ 96
Prepared statement............................................ 100
Responses to additional questions for the record from Senator
Biden....................................................... 172
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening
statement..................................................... 82
Mullen, Admiral Michael G., Vice Chief of Naval Operations, Joint
Chiefs of Staff, Department of the Navy, Washington, DC....... 102
Prepared statement............................................ 104
Responses to additional questions for the record from Senator
Biden....................................................... 172
Taft, Hon. William H., IV, Legal Adviser, Department of State,
Washington, DC................................................ 88
Prepared statement............................................ 91
Responses to additional questions for the record from Senator
Lugar....................................................... 168
Responses to additional questions for the record from Senator
Biden....................................................... 176
Responses to additional questions for the record from Senator
Kerry....................................................... 183
Turner, Hon. John F., Assistant Secretary of State, Bureau of
Oceans and International Environmental and Scientific Affairs,
Department of State, Washington, DC........................... 84
Prepared statement............................................ 85
Responses to additional questions for the record from Senator
Lugar....................................................... 168
Responses to additional questions for the record from Senator
Biden....................................................... 173
PANEL II
Cox, Joseph J., president and CEO, Chamber of Shipping of America,
Washington, DC................................................ 138
Prepared statement............................................ 140
Kelly, Paul L., senior vice president, Rowan Companies, Inc.,
Houston, TX................................................... 113
Prepared statement............................................ 117
Rufe, Vice Admiral Roger T., Jr., USCG (Ret.), president, The
Oceans Conservancy, Washington, DC............................ 121
Prepared statement............................................ 124
Thomas, Ms. Randi, national representative, U.S. Tuna Foundation,
Washington, DC................................................ 134
Prepared statement of David Burney, U.S. Tuna Foundation,
submitted by Ms. Thomas..................................... 135
ADDITIONAL STATEMENTS SUBMITTED FOR THE RECORD
American Bar Association, Dennis W. Archer, president, Washington,
DC............................................................ 150
Council on Ocean Law.............................................. 151
Humane Society of the United States, submitted testimony on
History and Interpretation of Article 65, by Patricia Forkan,
executive vice president...................................... 152
Kerry, Hon. John F., U.S. Senator from Massachusetts,............. 159
National Marine Manufacturers Association, Monita W. Fontaine,
Esq., vice president, Government Relations.................... 160
U.S. Arctic Research Commission, George B. Newton, chairman,
Washington, DC................................................ 161
White House Fact Sheet--Proliferation Security Initiative:
Statement of Interdiction Principles.......................... 165
World Wildlife Fund, Brooks B. Yeager, vice president, Global
Threats Program............................................... 166
THE U.N. CONVENTION ON THE LAW OF THE SEA (TREATY DOC. 103-39)
----------
TUESDAY, OCTOBER 14, 2003
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 9:30 a.m. in room
SD-419, Dirksen Senate Office Building, Hon. Richard G. Lugar
(chairman of the committee), presiding.
Present: Senator Lugar.
The Chairman. This hearing of the Senate Foreign Relations
Committee is called to order. The committee meets today to
begin consideration of the U.N. Convention on the Law of the
Sea. This treaty represents the culmination of decades of work
to produce a comprehensive international framework governing
the use of the world's oceans. The Law of the Sea Convention
has great potential to advance United States interests related
to the navigation of the seas, the productive use of their
resources, and the protection of the marine environment.
The United States played a leading role in negotiating the
convention in the 1970s and the early 1980s. Because of
concerns about its deep sea mining provisions, however, the
United States declined to sign the convention when it was
initially concluded in 1982. Subsequently the United States led
a successful effort to revise the deep sea mining provisions of
the convention. As a result, the United States signed the
convention in 1994.
Congress had expressed its support, stating in the Deep
Seabed Hard Mineral Resources Act of 1980 that: ``It is in the
national interest of the United States and other nations to
encourage a widely acceptable Law of the Sea Treaty which will
provide a new legal order for the oceans covering a broad range
of ocean interests.''
Although the convention was submitted to the Senate for its
advice and consent in October 1994, the Foreign Relations
Committee has not held a hearing on it since that time. I am
pleased the committee will now have that opportunity.
Today's hearing is the first step in that process. We will
hold a second hearing to examine the treaty on October 21.
Following these hearings, it is my intention to work on a
resolution of advice and consent, with the hope that the
committee can mark up such a resolution early next year.
More than 140 nations are party to the Law of the Sea
Convention, including all other permanent members of the U.N.
Security Council and all but two other NATO members. The
absence of American leadership in the convention diminishes its
effectiveness and our own influence over international ocean
policy. As a maritime state and the world's only superpower,
the United States has vital economic and security interests in
preserving freedom of navigation of the oceans and in
preventing piracy, smuggling, terrorism, and other criminal
activity from occurring off our shores. Our ability to import
goods from abroad and to sell our goods to other countries
depends on transporting these goods by sea.
As a coastal state, we also have important interests in
protecting the marine environment while managing and making
productive use of the resources off our coasts. These include
petroleum and mineral resources as well as fishery resources.
We are fortunate today to have two extremely knowledgeable
panels of witnesses to discuss the convention. First we will
have the privilege of hearing from our distinguished colleague
Senator Ted Stevens, Chairman of the Senate Appropriations
Committee, who has long been interested in the convention and
its ratification. Although our schedule did not permit the
attendance of Senator John McCain, he similarly expressed his
desire to speak on behalf of the convention.
Thus, we begin our inquiry with the knowledge that Senate
consideration of the convention is supported by the chairmen of
the Appropriations and Commerce Committees of the Senate. This
underscores the active interest that Members of the Senate have
taken in the Law of the Sea Convention during the long course
of its negotiation.
I want also to take this opportunity to recognize the
commitment and leadership of a former chairman of this
committee, Senator Claiborne Pell. Senator Pell brought passion
and expertise to his work on the Law of the Sea and our current
examination of the treaty benefits greatly from his
contributions.
In our second panel we will also welcome four witnesses
with exceptional expertise on the convention and related
maritime issues: Admiral James Watkins, Admiral Joseph Prueher,
Professor John Norton Moore, and Admiral William Schachte. I
will introduce this panel in greater detail after we have heard
from Senator Stevens. I thank all of you for joining us today
and we look forward to your insights.
[The opening statement of Senator Lugar follows:]
Opening Statement of Senator Richard G. Lugar
The committee meets today to begin consideration of the U.N.
Convention on the Law of the Sea. This treaty represents the
culmination of decades of work to produce a comprehensive international
framework governing the use of the world's oceans. The Law of the Sea
Convention has great potential to advance U.S. interests related to the
navigation of the seas, the productive use of their resources, and the
protection of the marine environment.
The United States played a leading role in negotiating the
Convention in the 1970s and early 1980s. Because of concerns about its
deep sea mining provisions, however, the United States declined to sign
the Convention when it was initially concluded in 1982. Subsequently,
the United States led a successful effort to revise the deep sea mining
provisions of the Convention. As a result, the United States signed the
Convention in 1994.
Congress had expressed its support for these efforts, stating in
the Deep Seabed Hard Mineral Resources Act of 1980 that: ``it is in the
national interest of the United States and other nations to encourage a
widely acceptable Law of the Sea Treaty, which will provide a new legal
order for the oceans covering a broad range of ocean interests.''
Although the Convention was submitted to the Senate for its advice
and consent in October 1994, the Foreign Relations Committee has not
held a hearing on it since that time. I am pleased that the committee
will now have the opportunity to consider this treaty. Today's hearing
is the first step in that process. We will hold a second hearing to
examine the treaty on October 21. Following these hearings, it is my
intention to begin work on a resolution of advice and consent, with the
hope that the committee can mark up such a resolution early next year.
More than 140 nations are party to the Law of the Sea Convention,
including all other permanent members of the U.N. Security Council and
all but two other NATO members. The absence of American leadership from
the Convention diminishes its effectiveness and our own influence over
international ocean policy.
As a maritime state and the world's only superpower, the United
States has vital economic and security interests in preserving freedom
of navigation on the oceans and in preventing piracy, smuggling,
terrorism, and other criminal activity from occurring off our shores.
Our ability to import goods from abroad and to sell our goods to other
countries depends on transporting these goods by sea. As a coastal
state, we also have important interests in protecting the marine
environment while managing and making productive use of the resources
off our coasts. These include petroleum and mineral resources, as well
as fisheries resources.
We are fortunate to have two extremely knowledgeable panels of
witnesses with us this morning to discuss the Convention. First, we
will have the pleasure of hearing from our distinguished colleague
Senator Stevens, who has long been interested in the Convention and its
ratification. Although our schedule did not permit the attendance of
Senator McCain, he similarly expressed his desire to speak on behalf of
the Convention. Thus, we begin our inquiry with the knowledge that
Senate consideration of the Convention is supported by the chairmen of
the Appropriations and Commerce Committees. This underscores the active
interest that Members of the Senate have taken in the Law of the Sea
Convention during the long course of its negotiation.
I also want to take this opportunity to recognize the commitment
and leadership of a former chairman of this committee, Senator
Claiborne Pell. Senator Pell brought passion and expertise to his work
on the Law of the Sea, and our current examination of the treaty
benefits greatly from his contributions.
We also welcome five witnesses with exceptional expertise on the
Convention and related maritime issues: Admiral James Watkins, Admiral
Joseph Prueher, Professor John Norton Moore, Admiral William Schachte,
Jr., and Professor Bernard Oxman.
First we will hear from Admiral James Watkins. Admiral Watkins
served from 1982 to 1986 as Chief of Naval Operations. From 1989 to
1993 he was U.S. Secretary of Energy. Currently, Admiral Watkins is the
Chairman of the U.S. Commission on Ocean Policy.
Our second witness on the panel is Admiral Joseph Prueher. Admiral
Prueher served for 35 years in the U.S. Navy. From 1996 to 1999, he was
Commander-in-Chief of the U.S. Pacific Command. From 1999 to 2001, he
served as U.S. Ambassador to China.
Next we will hear from Professor John Norton Moore. From 1973 to
1976, Professor Moore served as Ambassador and Deputy Special
Representative of the President to the Third U.N. Conference on the Law
of the Sea. He also was Chairman of the National Security Council's
Interagency Task Force on the Law of the Sea. Currently he is the
Walter L. Brown Professor of Law at the University of Virginia School
of Law and Director of the University's Center for Oceans Law and
Policy.
Finally we will hear from Admiral William L. Schachte, Jr. During
his Navy career, Admiral Schachte served in many capacities related to
ocean policy. He was a member of the U.S. Delegation to the Third U.N.
Conference on the Law of the Sea. He is currently special counsel to
Tetra Tech, Inc. Welcome to each of you.
We were to hear from a fifth witness, Professor Bernard Oxman.
Unfortunately, Professor Oxman has fallen ill and is not able to be
hear today. If there are no objections, his prepared written statement
will be included in the record in full. Professor Oxman served as
United States Representative and Vice-Chairman of the U.S. Delegation
to the Third U.N. Conference on the Law of the Sea. He is also a former
Assistant Legal Adviser for Oceans, Environment, and Scientific Affairs
in the Office of the Legal Adviser at the Department of State.
Professor Oxman is currently a Professor at the University of Miami Law
School and serves as a Judge Ad Hoc on the International Tribunal for
the Law of the Sea.
[The prepared statement of Senator McCain follows:]
Prepared Statement of Hon. John McCain, U.S. Senator from Arizona,
Chairman, Senate Commerce Committee
I am pleased to testify, today in support of the Senate's
ratification of the U.N. Convention on the Law of the Sea. As Chairman
of the Senate Committee on Commerce, Science, and Transportation, which
has jurisdiction over oceans, and maritime and ocean navigation, I
believe ratification of this important Convention would help strengthen
our national security, promote the free and unimpeded flow of
international trade and commerce, and protect our vital natural
resources. Its ratification would enable the United States to regain
its leadership role in promoting the rule of law for the oceans and
encouraging respect for traditional navigational freedoms.
Throughout our nation's history, our security and economic well-
being have long been dependent on our free access to the world's seas.
The oceans have helped to protect us against potential adversaries,
facilitate the transportation and trade of our products, and provided
abundant fish and natural resources in the waters off our shores.
The United States has historically been a global leader in
advocating the Law of the Sea. After World War II, the United States
was at the forefront in calling for a formal Law of the Sea and was one
of its champions during the two decade struggle to draft this
Convention. However, when the Convention was opened for signature in
1982, much of the developed world, led by the United States, refused to
sign it over concerns with the provisions related to deep seabed
exploitation.
In the early 1990s, the United States helped craft an important
compromise which satisfied the many objections to the deep seabed
mining provisions. Yet despite removing this impediment, we still have
not ratified this Convention, which to date has been ratified by 143
countries.
The U.N. Convention on the Law of the Sea provides a comprehensive
regime of law and order in the world's oceans and seas and it serves as
an umbrella convention under which rules governing all uses of the
oceans and their resources are established. As a global power, the
United States depends on ready and unrestricted access to the world's
oceans and international airspace. The navigational rights and freedoms
codified by the Convention would ensure our military continues to have
the mobility it needs to maintain a military presence around the world
and move military forces where needed. Additionally, these rights and
freedoms will ensure our nation's ability to ship goods and materials
throughout the world using the most expeditious routes.
Support for Convention ratification within the United States is
widespread and diverse, including environmental groups, the maritime
industry, the oil and natural gas industry, and the oceanographic
research community. The Clinton Administration previously supported
ratifying the Convention and now the U.S. State Department has
indicated its support of ratification. Additionally, in one of its
first official acts, the U.S. Commission on Ocean Policy publicly
called for ratification of the Convention.
As a result of our failure to ratify the Convention, our national
interests have suffered. We are now barred from membership on the Law
of the Sea Tribunal and the Continental Shelf Commission as well as the
right to name members to special arbitration panels which are
responsible for settling interstate disputes. In these bodies, the
United States has been relegated to observer status. Furthermore, the
United States is barred from membership in the International Seabed
Authority where parties to the Convention organize and direct ventures
to exploit the mineral resources of the deep seabed.
The importance of the U.S. ratification of the Convention is
further compounded by the emerging issues brought about because of
Global Climate. For example, as the Arctic icecap around the Canadian
Arctic archipelago continues to shrink and thin, some scientists have
suggested the Northwest Passage could be open for possible year-round
navigable passage within 10 to 15 years. As a result, the contentious
issue of whether this passage will be an international strait or
considered part of Canadian waters will need to be determined.
It has been more than nine years since the Convention was
transmitted to the Senate for ratification, where it has since resided
with the Senate Committee on Foreign Relations. Today's hearing is an
important step toward finally addressing this critical international
issue and I hope it prompts Senate ratification of the Convention in
the near future.
The Chairman. Let me now give a special welcome to my
colleague Ted Stevens. We really do appreciate your coming this
morning, Ted, on this important issue.
STATEMENT OF HON. TED STEVENS, U.S. SENATOR FROM ALASKA,
CHAIRMAN, APPROPRIATIONS COMMITTEE, U.S. SENATE, WASHINGTON, DC
Senator Stevens. Thank you very much, Mr. Chairman. We do
have our supplemental on the floor at 10 o'clock. I wish I
could join you to listen to these panels. However, I have
confidence that they will present substantial testimony in
favor of the Law of the Sea Convention.
I do thank you for holding the first of the two hearings on
the U.N. Convention on the Law of the Sea. In 1969, Mr.
Chairman, my first full year in the Senate, Senator Warren
Magnuson, then Chairman of the Commerce Committee, asked me to
monitor the Law of the Sea negotiations. As a freshman minority
member at that time and assigned to attend all of the
negotiations around the world, I learned a great deal from the
discussions on the Law of the Sea that took place all over the
world, and the work on the Magnuson-Stevens Act was really a
product of those negotiations. The concepts embodied in that
act I believe were ahead of its time by 20 to 30 years.
Mr. Chairman, I am going to summarize the balance of my
statement and ask you to print the full statement in the record
if you will.
The Chairman. It will be published in full in the record.
Senator Stevens. I am proud that Congress and the President
approved Alaskans' suggestions that are now part of the U.N.
Convention on the Law of the Sea. These include many of the
provisions of the convention that are consistent with the
Magnuson-Stevens Act on living resource management,
conservation and exploitation. Before the passage of this act,
fisheries around the world, including those off our State of
Alaska, were being overfished, primarily by distant foreign
fleets.
Second, the moratorium on high seas driftnets. In 1987, the
Driftnet Impact Monitoring, Assessment, and Control Act
directed the Secretary of the Interior to negotiate observer
and enforcement agreements with nations whose vessels used
large-scale driftnets on the high seas. It also began the
process that eventually led to the U.S. recommendation that the
U.N. adopt our suggestion for a global moratorium on large-
scale driftnet fishing on the high seas.
Third, the agreement on conservation and management of
straddling fish stocks and highly migratory species. The
Convention on Conservation and Management of Pollock Resources
in the Central Bering Sea, otherwise known as the Donut Hole
and the 1995 U.N. Fish Stocks Agreement, attempted to better
define the obligations and redress for countries where highly
migratory species and straddling fish stocks originate.
The Donut Hole agreement was the model for the global
treaty that became the 1995 U.N. Fish Stocks Agreement. I
carried the commitment to ratify this agreement to the United
Nations General Assembly and the U.S. did the right thing by
ratifying it in August 1996.
I believe the Donut Hole and the U.N. Fish Stocks Agreement
cleared up many concerns that had been voiced about the
efficacy of enforcing living marine resource laws
internationally under this convention. The agreements have
proven to be critical first steps toward cooperative
international management of transboundary stocks.
I do recommend ratification of the Convention on the Law of
the Sea and related agreements, provided the following concerns
are adequately addressed: First, potential surpluses of U.S.
fish stocks must not lead to arguments by foreign nations to
gain access to these marine resources. The quotas for all
groundfish contained in the Bering Sea and Aleutian Islands are
capped at a maximum of 2 million metric tons annually, which
include pollock, Pacific cod, yellowfin sole, turbot,
arrowtooth flounder, rock sole, Alaska plaice, sablefish,
Pacific Ocean perch, northern rockfish, rougheye, atka
mackerel, and squid. This is the most bountiful place I think
in the world for fisheries today that are under sound
management.
This cap is enforced regardless of the maximum recommended
acceptable biological catch level. This is one of the longest
standing conservation measures in the North Pacific.
The pollock biomass is now at an all-time high, with 2002
overfishing levels at 3.54 million metric tons. As you know,
article 62 of the convention is consistent with the Magnuson-
Stevens Act for authorizing the allocation of any surplus to
foreign States and provides terms and conditions for any
foreign fishing in the U.S. exclusive zone.
Apparently, recent changes or proposals to the Law of the
Sea have not changed this and I hope we will be vigilant, if we
ratify this convention, to assure that strong conservation
measures to protect species in U.S. waters do not lead to
claims by foreign fleets to gain access to our living marine
resources.
Mr. Chairman, it is very important, because we do not
allocate to maximum availability. We allocate so that the
stocks are constantly increasing in biomass, and we have proven
that with our pollock. It is growing substantially.
Third, next, the deep seabed claims by Russia on the Arctic
shelf. It is my understanding that the United States
successfully negotiated favorable terms on the deep sea mining
agreement which should guarantee us a seat on the
decisionmaking body of the International Seabed Authority and
eliminate mandatory transfer of technology provisions. Further,
it scales back the administrative structure for the mining
regime. I do believe, from the mining point of view, that this
convention is now acceptable if that understanding is correct,
Mr. President.
The Arctic continental shelf extends beyond the U.S. 200-
mile exclusive economic zone and is of great interest to
Alaska. As a matter of fact, two-thirds of the United States
continental shelf is off Alaska. Article 76 of the convention
allows member States to lay claim to all bottom resources on
their continental shelves beyond 200 miles. It is my
understanding that Russia has recently proposed claims to a
large area of the Arctic shelf to the International Seabed
Authority. Aggressive claims such as these raise a question of
whether the U.S. would be better situated if it became a party
to the convention and had a seat on the authority that oversees
these claims.
In addition, if we ratify the convention pursuant to
article 76 the U.S. could lay claim to an area of about 62,000
square kilometers north and east of the Bering Strait. I
recommend that this committee closely review the agreement on
deep seabed mining with regard to the outer continental shelf
off our State. I strongly recommend this committee work closely
with our Commerce Committee on the various issues that I raised
today and I know the Chairman, Senator McCain, will raise, and
others that are very much within our committee's jurisdiction.
We believe that the provisions of the convention must be
specific to avoid future misinterpretation. Proponents of
ratifying the Law of the Sea argue that active U.S.
participation in the convention and agreements will guarantee
that the protections and restrictions are applied in a fair and
commensurate manner. I urge caution. The Law of the Sea
Convention and other related agreements must not be open-ended
and some of them are, Mr. Chairman. But these provisions must
be specific and precise to prevent future misinterpretation. I
do believe your committee has a real task ahead of itself to
find out how we might make certain that these future
interpretations do not enlarge the scope of foreign invasion of
our basic 200-mile limit. If those determinations are not
clear, later interpretations will seriously erode the U.S.
policy that I have described.
The U.S. Commission on Oceans Policy is expected to release
its report on oceans policy next month, and I see Admiral
Watkins is here, who has done a magnificent job with the
Commission. Their report, I am told, will include a
recommendation for the United States to become a party to the
convention.
The Senate should seriously consider their recommendation.
The Law of the Sea Convention has benefited from the laws that
originated here in the United States that I have recited. This
convention now embodies the 200-mile exclusive economic zone,
provisions to prevent destructive fishing practices, and
conservation and management of shared living resources. But
Congress needs further assurance that the Law of the Sea will
not undermine future conservation and management initiatives or
security measures.
In this and future centuries, Mr. Chairman, demands on the
world's oceans will only increase, as we all know. If properly
managed, oceans will become an even more important and
bountiful source of food as well as a place of commerce,
communication, and resource development. The Law of the Sea can
provide us with the comprehensive legal framework that we need
to maximize our utilization of the ocean resources while
ensuring their healthiness and productivity for generations to
come.
Again, I congratulate you for holding these hearings and
look forward to working with you as this convention comes to
the floor. I thank you for your courtesy, Mr. Chairman.
[The prepared statement of Senator Stevens follows:]
Prepared Statement of Hon. Ted Stevens, U.S. Senator from Alaska,
Chairman, Senate Appropriations Committee
Chairman Lugar, thanks for holding this first of two hearings on
the U.N. Convention on the Law of the Sea. In 1969, my first full year
in the Senate, Senator Warren Magnuson asked me to monitor the Law of
the Sea negotiations. As a freshman minority member then, and assigned
to attend all of those negotiations, I learned a great deal from the
discussions on the Law of the Sea that took place all over the world,
and work on the Magnuson-Stevens Act was really a product of those
negotiations. The concepts embodied in that Act were ahead of its time
by 20 or 30 years.
Many of the provisions in the Law of the Sea Convention are
consistent with the Magnuson-Stevens Act on living resource management,
conservation and exploitation. Before passage of our Act fisheries
around the world, including those off the coast of Alaska, were being
overfished, primarily by distant foreign fleets. These fleets engaged
in ``pulse fishing'' in U.S. waters. ``Pulse fishing'' exploits one
fishery until its collapse and then move on to another fishery and
decimate those stocks. This practice was devastating for our fisheries,
and until the 200-mile exclusive economic zones were established there
was very little international cooperation to manage or to protect
shared fisheries.
After the 200-mile Exclusive Economic Zone for U.S. waters was
implemented, attention turned to the fishing practices on the high seas
and the adverse affects on straddling fish stocks and highly migratory
species. Addressing this problem was extremely important for Alaska
because of the high seas interception of Alaska salmon by foreign
fleets. Wild salmon prices were strong at the time, and high seas
fishing was damaging the resource by reducing the overall
sustainability of the stocks. In response to this problem, the Driftnet
Impact Monitoring, Assessment, and Control Act was introduced in 1987.
That Act directed the Secretary of State to negotiate observer and
enforcement agreements with nations whose vessels used large scale
driftnets on the high seas. It also began the process that eventually
led to the U.S. recommendation that the U.N. adopt our suggestion for a
global moratorium on large-scale driftnet fishing on the high seas.
The Law of the Sea Convention incorporated the 200-mile exclusive
economic zones and placed substantive restrictions, such as the
moratorium on large-scale driftnets, on the freedom of fishing on the
high seas under Article 87. These are real protections that will allow
for conservation and management of the world's shared living marine
resources. They establish a precedent that, particularly on the high
seas outside the jurisdiction of any country, destructive fishing
practices will not be tolerated. These important provisions make the
Law of the Sea Convention a much better body of international law.
From 1990 to 1994, the U.S. participated in consultations designed
to remedy the problems with the deep seabed provisions of the Law of
the Sea Convention. President Clinton signed the 1994 Agreement on the
revised deep seabed mining provisions, which was referred to this
committee in October of that year. It is my understanding that the U.S.
successfully negotiated favorable terms on the deep seabed mining
Agreement, which should guarantee the U.S. a seat on the decision-
making body of the International Seabed Authority and eliminates
mandatory transfer of technology provisions. Further it scales back the
administrative structure for the mining regime.
The Arctic continental shelf extends beyond the U.S. 200-mile
exclusive economic zone and is of great interest to Alaska, in fact 2/
3rds of the continental shelf off the U.S. is off Alaska. Article 76 of
the Convention allows member States to lay claim to all bottom
resources on their continental shelves beyond 200-miles based on the
appropriate charting and relevant geodetic data. It is my understanding
that Russia has recently proposed claims to large areas of the Arctic
shelf to the International Seabed Authority. These claims may be of
little consequence to the U.S. because we are not a party to the
Agreement on deep seabed mining and would likely not respect or
recognize these claims. However, it does raise a question of whether we
would be better situated if the U.S. became a party to the Convention
and were represented on the Authority that oversees these claims. In
addition, if we ratify the convention, pursuant to Article 76 the U.S.
could lay claim to an area of about 62,000 square kilometers, an area
roughly larger than West Virginia, north and east of the Bering Strait.
I recommend that this committee closely review the Agreement on deep
seabed mining.
Around the same time the agreement on deep seabed mining was
completed, work was being done on two other important agreements. Those
agreements attempt to better define the obligations and redress for
countries where highly migratory species and straddling fish stocks
originate. They were titled the ``Convention on Conservation and
Management of Pollock Resources in the Central Bering Sea'' otherwise
know as the Donut Hole, and the 1995 U.N. Fish Stocks Agreement. The
Donut Hole agreement restricted the U.S., Russia and the four former
high seas fishing states--Japan, South Korea, China and Poland--from
fishing for pollock within an area in the Central Bering Sea until
those stocks recovered.
The Donut Hole agreement was important because it effectively
coordinated international fishing efforts on certain pollock straddling
stocks, and it also was the model for the global treaty that became the
1995 U.N. Fish Stocks Agreement. I carried the commitment to ratify
this agreement to the United Nations General Assembly, and the U.S. did
the right thing by ratifying it in August of 1996. I believe the Donut
Hole and U.N. Fish Stocks Agreements cleared up many concerns that had
been voiced about the efficacy of enforcing living marine resource laws
internationally under the Convention. To this date to my knowledge none
of the countries party to the Donut Hole agreement have permitted
fishing in the restricted area and those stocks continue to rebuild.
The agreements have proven to be critical first steps toward
cooperative international management of transboundary stocks. Because
of good management practices the biomass of pollock off Alaska
continues to grow.
The international agreements on shared stocks, especially those in
the Bering Sea, demonstrates an important issue on conservation and
management under the Convention. The quotas for all groundfish combined
(which include pollock, Pacific cod, yellowfin sole, turbot, arrowtooth
flounder, rock sole, Alaska plaice, sablefish, Pacific Ocean perch,
northern rockfish, rougheye, atka mackerel, and squid) in the Bering
Sea and Aleutian Islands are capped at a maximum of 2 million metric
tons annually, regardless of the maximum recommended acceptable
biological catch levels. This is one of the longest standing
conservation measures in the North Pacific. For the past 25 years,
annual catch limits for groundfish have been set at or below the
acceptable biological catch levels recommended by fishery scientists.
The pollock biomass is currently near all-time high levels, with a 2002
overfishing level of 3.54 million metric tons and an acceptable
biological catch level of 2.1 million metric tons--this is for pollock
alone, not combining the rest of the groundfish species in the Bering
Sea, and still the Council conservatively does not allow harvesting
over the cap. The North Pacific presently has large surpluses of
pollock because of the conservative and science-based management by the
Regional Council. As you know, Article 62 of the Convention is
consistent with the Magnuson-Stevens Act for authorizing the allocation
of any surplus to foreign States and provides terms and conditions for
any foreign fishing in the U.S. exclusive economic zone.
Apparently, recent changes or proposals to the Law of the Sea have
not changed this, but we must be vigilant if we ratify this Convention,
to assure that strong conservation measures to protect species in U.S.
waters do not lead to arguments by foreign fleets to gain access to our
living marine resources.
I would also recommend this committee look closely at the
provisions in the Convention relating to freedom of navigation in
territorial seas. As a result of the Exxon Valdez oil spill, tankers
operating in U.S. waters must be double-hulled. There should be a
clarification in Part II, Article 21 pertaining to laws and regulations
of the coastal State relating to innocent passage. Section 2 of this
Article specifies that such laws and regulations of a coastal State
shall NOT apply to the design or construction of foreign ships.
Therefore, foreign ships carrying toxic materials would be allowed to
move freely in the territorial seas of coastal States and not have to
meet certain design requirements, such as double-hulls. The spills of
the past, such as that off the coast of Spain and Portugal last year
should have taught us that some foreign fleets do not meet even basic
maintenance and structural integrity requirements. We should not permit
this Convention to erode the stringent environmental standards required
in the U.S.
I strongly recommend that this committee work closely with the
Commerce Committee on the various issues I have raised today, as they
are very much within that committee's jurisdiction.
Proponents of ratifying the Law of the Sea argue that active U.S.
participation in the Convention and Agreements will guarantee the
protections and restrictions are applied in a fair and commensurate
manner. I urge caution: the Law of the Sea Convention and other related
agreements must not be open ended; provisions must be specific and
precise to prevent future misinterpretation. If those determinations
are not clear, later interpretations will seriously erode U.S. policy.
Finally, the U.S. Commission on Ocean Policy is expected to release
its report on Ocean Policy next month. It is my understanding their
report will include a recommendation for the U.S. to become a party to
the Convention. The Senate should consider seriously their
recommendation. The Law of the Sea Convention has benefited from the
laws that originated in the U.S. This Convention now embodies the 200-
mile exclusive economic zone, provisions to prevent destructive fishing
practices, and conservation and management of shared living resources.
But Congress needs assurance that the Law of the Sea will not undermine
future conservation and management initiatives or security measures.
In this and future centuries, demands on the world's oceans will
only increase. And, if properly managed oceans will become an even more
important and bountiful source of food as well as a place of commerce,
communication and resource development. The Law of the Sea can provide
us with the comprehensive legal framework we need to maximize our use
of the oceans' resources, while ensuring their healthiness and
productivity for generations to come.
The Chairman. Thank you very much, Senator Stevens. I thank
you again, as you have recited the many ways over decades in
which you have participated in this public policy issue. My
background is not nearly as extensive as yours, but I was
impressed at an Aspen Institute conference in Rome this year
about the conservation and security issues that you have
mentioned and the fact that we must not undermine those. These
are a very important part of the heritage that you have brought
to this and that we hope to continue. I would think that we
would want to work carefully with the Commerce Committee, and
likewise with yourself, given your background, as we get the
advice and consent resolution prepared after our hearings are
concluded.
We look forward to working with you and we appreciate your
strong testimony.
Senator Stevens. Thank you very much. Matt Paxton of my
staff has worked with me on this matter and I would urge that
he be permitted to stay as long as he can as an observer of
these hearings.
The Chairman. We welcome him with you today and we welcome
his continuing as an observer working with our committee. Thank
you very much. Good luck on the floor.
I would like to welcome now our second panel. We are
pleased this morning to have four outstanding witnesses to
discuss the implications of the Law of the Sea Convention.
First we will hear from Admiral James Watkins. Admiral Watkins
served from 1982 to 1986 as Chief of Naval Operations. From
1989 to 1993 he was United States Secretary of Energy.
Currently Admiral Watkins is the Chairman of the United States
Commission on Ocean Policy, and the report which Senator
Stevens referenced will be forthcoming shortly and of benefit
to our committee.
Our second witness on the panel is Admiral Joseph Prueher.
Admiral Prueher served for 35 years in the United States Navy.
From 1996 to 1999 he was Commander-in-Chief of the United
States Pacific Command. From 1999 to 2001 he served as the
United States Ambassador to China.
Next we will hear from Professor John Norton Moore. From
1973 to 1976 Professor Moore served as Ambassador and Deputy
Special Representative of the President to the Third United
Nations Conference on the Law of the Sea. He also was Chairman
of the National Security Council's Inter-Agency Task Force on
the Law of the Sea. Currently he is the Walter L. Brown
Professor of Law at the University of Virginia School of Law
and director of the University's Center for Oceans Law and
Policy.
Finally, we will hear from Admiral William Schachte. During
his Navy career, Admiral Schachte served in many capacities
related to ocean policy. He was a member of the United States
Delegation to the Third U.N. Conference on the Law of the Sea.
He is currently special counsel to Tetra Tech, Inc.
We welcome each of you. I would indicate that we were to
hear from a fifth witness, Professor Bernard Oxman.
Unfortunately, Professor Oxman has fallen ill and is not able
to be here today. If there are no objections, and the Chair
hears none, his prepared statement will be included in the
record in full.
Professor Oxman has served as United States Representative
and Vice Chairman of the U.S. Delegation to the Third U.N.
Conference on the Law of the Sea. He is also the former
Assistant Legal Advisor for Oceans, Environment, and Scientific
Affairs in the Office of the Legal Advisor at the Department of
State. Professor Oxman is currently a professor at the
University of Miami Law School and serves as a judge ad hoc on
the International Tribunal for the Law of the Sea.
[The prepared statement of Professor Oxman follows:]
Prepared Statement of Prof. Bernard H. Oxman,\1\ University of Miami
School of Law
Mr. Chairman and Members of the Committee,
It is an honor to appear before you today to testify on the United
Nations Convention on the Law of the Sea and the Implementing Agreement
Regarding Part XI of the Convention.
I must begin by begging your indulgence. I returned to the United
States from Hamburg only last Friday after serving for several weeks on
the International Tribunal for the Law of the Sea as a judge ad hoc
appointed by one of the states party to the case. One unfortunate
consequence is that my statement today is less polished and thorough
than I would have liked. In this respect I fortunately had the luxury
of relying on what I anticipated to be the comprehensive statements of
others here today.
Whatever the utility of my remarks, I hope the Committee will bear
in mind the authority, insight and conviction with which the case for
the Convention would have been presented by two extraordinary
individuals with whom it was my great honor to work most closely, the
late Ambassador John R. Stevenson and the late Ambassador Elliot L.
Richardson. Both served at critical formative periods as Special
Representative of the President for the Law of the Sea and are
unquestionably regarded throughout the world as among the small handful
of individuals singularly responsible for the ultimate shape of the
Convention.
Mr. Chairman, it is my strongly held opinion that it is in the
interests of the United States to become party to the Convention as
soon as possible. We are, and have been since the founding of the
Republic, a seafaring nation that relies on the right to move off
distant shores. Our security is dependent upon the unchallenged global
mobility of our armed forces to respond to any threat, whatever its
nature, emanating from any part of the world; our prosperity is
dependent upon the unimpeded global movement of goods and persons to
and from our shores; and our future well-being may increasingly depend
on the uninterrupted global carriage of telecommunications by submarine
cable.
Ambassador Stevenson and I put it this way:
From the perspective of international security, the basic
question is whether forces may be moved from one place to
another without the consent or interference of states past
whose coasts they proceed. Global mobility is important not
only to naval powers but to other states that rely on those
powers to maintain stability and deter aggression, directly or
through the United Nations. As the size of major navies is
reduced after the Cold War, the adverse impact on their ability
to perform their primary missions will increase if they must
divert scarce resources to challenging coastal state claims
that prejudice global lines of communication or set adverse
precedents. Enhancing the legal security of navigation and
defense activities at sea maximizes the efficient use of
defense resources.
From the perspective of trade and communications, the basic
question is whether two states may communicate with each other
by sea without interference by a third state past whose coast
they proceed. Restrictions imposed by a coastal state along the
route may well result in increased costs for industries
dependent upon trade and communications and for countries whose
exports or imports are affected.\2\
The historic tension in the law of the sea has been a struggle
between the freedom of the seas and coastal state sovereignty over the
seas. The two are, in their purest forms, directly contradictory. The
duty of all states to respect the freedoms of the seas is in principle
equal. If one coastal state can impose a limitation, all can.
Thus, when in 1945 President Truman claimed the natural resources
of the continental shelf beyond the territorial sea of the United
States, we willingly ceded the same exclusive control to other coastal
states that we claimed for ourselves. The difficulty is that we were
unable to control the process. We were emulated, so to speak, beyond
our wildest expectations. It was plausibly argued that since, as the
uncontested global maritime power at the time, we had the greatest
interest in preventing coastal state incursions on freedom of the seas,
any claims of exclusive coastal state control that we made were the
minimum, not the maximum, that might be regarded as reasonable. Where
we limited our claim to the seabeds, others claimed the waters and even
the airspace over vast areas as well. Where we limited our claim to
natural resources, others claimed sovereignty and with it control over
all activities, including navigation and overflight.
Our official position that coastal state sovereignty ended at the
three-mile limit, and therefore that the free high seas began at that
limit, became increasingly untenable. What was emerging was a sense
that any coastal state could claim what it wished and might well get
away with it; in opposing those claims, the United States and other
maritime nations were regarded as hypocritical because they too claimed
what they wished off their own coasts. If the United States could
unilaterally try to strike the right balance between its coastal
interests in control of foreign uses of the sea off its own coast, and
its maritime interests in the free use of the sea off foreign coasts,
why couldn't others strike a balance that suited them better? That very
process ironically made it harder for the United States to protect its
interests off its own coast, for fear that new assertions of right
would abet a process that would further degrade what remained of the
platform of principle upon which the U.S. operated off foreign shores.
In short, the interests of the United States in both global mobility
and in protection of its interests off its own shores were caught in a
stultifying conundrum.
Needless to say, the United States had the ability to challenge
foreign states that interfered with its perceived rights. But to
physically challenge every coastal state that made a claim contrary to
our view of our rights would have required far greater resources than
we were prepared to divert to such a project, and would have come at a
significant cost to other U.S. interests in the various countries
concerned. Moreover, both domestic and international public opinion
demanded a platform of principle for such overt assertions of right off
foreign shores that was substantially more legitimate than nostalgic
invocation of what once may have been the law.
As stated in a study by the Panel on the Law of Ocean Uses, of
which I was rapporteur at the time,\3\ the United States was faced
``with three expensive choices when confronted with a foreign state's
claim of control over our navigation or military activities off its
coast in a manner inconsistent with our view of the law:
1. resistance, with the potential for prejudice to other U.S.
interests in that coastal state, for confrontation or violence,
or for domestic discord;
2. acquiescence, leading inevitably to a weakening of our
position of principle with respect to other coastal states
(verbal protests to the contrary notwithstanding) and domestic
pressures to emulate the contested claims; or
3. bilateral negotiation, in which we would be expected to
offer a political, economic or military quid pro quo in
proportion to our interest in navigation and military
activities that, under the Convention's rules, can be conducted
free of such bilateral concessions.''
The fundamental truth is that the most difficult and potentially
costly policy decisions made by the President and the Congress
regarding activities at sea turn not on what our own lawyers say our
rights are under the law of the sea, but what foreign states perceive
our rights to be. And what we saw in the 1960's was an accelerating
collapse of any semblance of consensus on the fundamental question:
Where is there freedom and where is there sovereignty?
This is the setting in which President Nixon made his historic
decision in 1970 to launch a new oceans policy. The challenge was to
devise a political strategy for stabilizing and enhancing our ability
to influence the perceptions of foreign coastal states as to their
rights and duties, and hence their perceptions as to our rights and
duties, off their coasts. The key to that policy was a new multilateral
elaboration of the law of the sea. The object was a widely ratified
convention of highly legitimate pedigree that, by balancing the
conflicting interests not only between but within states, stabilized
the law of the sea over the long term and protected our fundamental
interests in global mobility. This in turn would provide us a common
platform of principle to influence foreign perceptions of their rights
and duties as well as our rights to operate off foreign coasts and to
regulate activities off our own coast.
Ambassador Richardson put the objective in the following way:
A Law of the Sea treaty creating a widely accepted system of
international law for the oceans would--if the rules it
contains adequately meet U.S. needs--be the most effective
means of creating a legal environment in which our own
perception of our rights is essentially unchallenged. We would
then, for the first time since the Grotian system began to
disintegrate, be assured rights of navigation and overflight
free of foreign control, free of substantial military risk, and
free of economic or political cost.\4\
It took another thirteen years of hard continuous negotiations
among the nations of the world before President Reagan was finally able
to declare the underlying substantive effort launched by President
Nixon a success: President Reagan concluded that the provisions of the
Convention with respect to traditional uses of the sea ``fairly balance
the interests of all states'' and expressly stated that ``the United
States will recognize the rights of other states in the waters off
their coasts, as reflected in the Convention, so long as the rights and
freedoms of the United States and others under international law are
recognized by such coastal states.''
The policy declared by President Reagan aligns our position
regarding customary international law with the substantive provisions
of the Convention dealing with all the traditional uses of the sea.
What then are the advantages of becoming a party?
President Reagan expressly recognized that the rules set forth in
the Convention constitute the platform of principle on which we
operate. There is indeed no plausible alternative for the foreseeable
future. The interpretation and application of these rules, like all
rules, is a dynamic process that evolves with time. It is going on in
countless venues even as we speak. As a practical matter, our rights
and duties will be affected by that process whether or not we are
party. What we gain by becoming party is increased influence over that
process.
In particular:
we gain the ability to speak authoritatively as a party to
the Convention in setting forth our views regarding its
interpretation and application;
we gain the enhancement of our credibility when we insist
that other states respect the Convention; as the world's
principal maritime power, we are already the most active in
noting and protesting foreign legislation and other measures
that we believe may not be fully consistent with the
Convention;
we gain the right to participate in the organs established
by the Convention and the meetings of states parties; one
example is the review by the Commission on the Limits of the
Continental Shelf of Russian continental shelf claims that
immediately abut our own and implicate our own interests in the
Arctic; another is the permanent seat on the Council of the
Seabed Authority accorded the United States by the 1994
Implementing Agreement.
With respect to the underlying objective of promoting stability in
the law of the sea, the 1994 Study of the Panel on the Law of Ocean
Uses suggests four main advantages of widespread, including U.S.,
ratification:
1. Treaties are perceived as binding. Legislators,
administrators, and judges are more likely to feel bound to
respect treaty obligations. . . . Even nonparties are more
likely to be cautious about acting a manner contrary to a
widely ratified Convention; if they do, they are more likely to
be isolated when their claims are challenged.
2. Treaty rules are written. Treaty rules are easier to
identify and are often more determinate than customary law
rules. Even if one argues that a customary law rule is
identical to a treaty rule, that argument in and of itself is
elusive and hard to prove. Even a nonlawyer reading the text of
a binding treaty knows he or she is reading a binding legal
rule, and can often form some appreciation of what the rule may
require.
3. Compulsory arbitration. Parties to the Law of the Sea
Convention are bound to arbitrate or adjudicate most types of
unresolved disputes regarding the interpretation or application
of the Convention. This can help forestall questionable claims
in the first place. Perhaps more importantly, it provides an
option for responding to unilateral claims the may well be less
costly than either acquiescence or confrontation. Because
states are not bound to arbitrate or adjudicate disputes absent
express agreement to do so, this benefit of the Convention . .
. is dependent upon ratification.
4. Long-term stability. Experience in the [twentieth] century
has shown that the rules of the customary law of the sea are
too easily undermined and changed by unilateral claims of
coastal states. Treaty rules are hard to change unilaterally.
At the same time, the Law of the Sea Convention establishes
international mechanisms for ordered change that promote rather
than threaten the long-term stability of the system as a
whole.\5\
To these I might add that other coastal states. that have yet to
become party to the Convention are more likely to follow suit once we
do, beginning with our Canadian friends. This may even include states
with whose governments we are not on intimate terms, but whose experts
have a sophisticated understanding of the law of the sea, and whose
decision-makers might regard the subtle reciprocal gesture of becoming
party to the Convention as providing a rational basis for avoiding
unnecessary conflict with the United States over navigation and
overflight as well as offering other benefits.
Senate approval of the Convention at this time may also be roughly
contemporaneous with the anticipated approval by the European Union of
the 1995 Agreement on the Implementation of the Provisions of the Law
of the Sea Convention regarding Straddling Fish Stocks and Highly
Migratory Fish Stocks, to which the United States is already party but
which is not as widely ratified as the Convention. With both Europe and
the United States firmly aligned on the essential elements of the
superstructure of the modern law of the sea, it is more likely that
others can be encouraged to come along soon.
Mr. Chairman, there is insufficient time for me to even begin to
outline all of the specific benefits to the United States of
ratification of the Convention. With your permission, I would like to
submit for the record a copy of Ambassador Stevenson's and my published
observations on The Future of the United Nations Convention on the Law
of the Sea from which I have already quoted;\6\ these observations were
prepared at the time the future of the Convention was still very much
in doubt and new arrangements were beginning to emerge that ultimately
became the 1994 Implementing Agreement regarding Part XI of the
Convention.
That said, I must make special note that Ambassador Stevenson and I
specifically observed that, ``The Convention is the strongest
comprehensive environmental treaty now in existence or likely to emerge
for quite some time.'' \7\ I am delighted to see that former Secretary
of State Warren Christopher agreed with this appraisal in his Letter of
Submittal of the Convention. I would only add that the statement
remains true today. The protection and preservation of the marine
environment is of fundamental importance to the American people and to
people throughout the world. No one country can achieve this on its
own. Both environmental and economic objectives point in the same
direction, namely international standards that states have the right
and duty to implement, supplemented by measures taken by states
individually and jointly to control access to their own ports and to
regulate seabed activities, offshore installations, and similar
matters. One of the greatest contributions made by the Convention is to
be found in its extensive provisions mandating this approach.
Mr. Chairman, this Committee has before it a Convention that
reflects a conscious decision by the United States that multilateralism
was and is in its best interests with respect to the law of the sea. It
has before it the most comprehensive and ambitious lawmaking convention
ever negotiated, a Convention that makes a significant contribution to
the rule of law in international affairs because strengthening the rule
of law at sea was and remains important to American interests. It has
before it a powerful Convention on protection and preservation of the
marine environment precisely because this Convention seeks to achieve a
reasonable balance between environmental protection and other
interests.
Senate approval of the Convention and the 1995 Implementing
Agreement would suggest that there is every reason to ensure that the
international agenda is pursued carefully and that, as long as it may
take, at the end of the day relevant interests are reasonably
accommodated. It would announce that when that is done, America will
stand second to none in joining to strengthen multilateralism, to
strengthen the rule of law in international affairs, and to strengthen
protection of the environment.
Mr. Chairman, it is of particular importance that many of the 143
parties to the Convention worked painstakingly with us over many years
to produce a Convention that we as well as they could ratify. From the
perspective of much of the rest of the world, a great deal of the
negotiation of the Law of the Sea Convention revolved around
accommodating the interests and views of the United States regarding:
the 12-mile maximum limit for the breadth of the territorial
sea,
the retention of many provisions drawn from the 1958
Conventions on the Territorial Sea and the Contiguous Zone, the
Continental Shelf and the High Seas, to which the United States
is party,
the more detailed and objective provisions on innocent
passage,
the extension of the contiguous zone to 24 miles from the
coastal baselines in order to strengthen enforcement of
smuggling and immigration laws,
the new regime of transit passage through, over and under
straits,
the new regime of archipelagic waters and archipelagic sea
lanes passage,
the detailed and carefully balance of the provisions
regarding the regime of the 200-mile exclusive economic zone
and its status, including express enumeration of the rights of
the coastal state and express preservation of the freedoms of
navigation, overflight, laying of submarine cables and
pipelines, and other internationally lawful uses of the sea
related to these freedoms,
the immunities of and exemptions for warships and military
aircraft,
the precision of the texts on artificial islands,
installations and structures,
the extension of the limit of the continental shelf to the
outer edge of the continental margin,
the inclusion, in additional to coastal state control over
fisheries in the 200-mile exclusive economic zone, of a ban on
salmon fishing beyond the zone, a reference to regional
regulation of tuna fisheries, and a special provision
protecting marine mammals,
the avoidance of a separate legal regime for enclosed and
semi-enclosed seas,
the limitations on coastal state authority with respect to
marine scientific research,
the elaborate detail on environmental rights and
obligations,
the inclusion of compulsory arbitration or adjudication with
important exceptions (e.g. for military activities),
the limitation of the regulatory functions of the Seabed
Authority to mining activities, and
most dramatically, the extensive revision of Part XI of the
Convention in the 1994 Implementing Agreement to accommodate
the objectives articulated by President Reagan.\8\
These and many more provisions are widely regarded as having been
designed to respond positively to U.S. requirements and interests.
Mr. Chairman, I respectfully recommend that the United States take
yes for an answer and assume its rightful place as a party to the
Convention and the Implementing Agreement.
Thank you.
footnotes
\1\ Professor of Law, University of Miami School of Law. Formerly
United States Representative and Vice-Chairman of the U.S. Delegation
to the Third U.N. Conference on the Law of the Sea, and Chairman of the
English Language Group of the Conference Drafting Committee.
\2\ John R. Stevenson and Bernard H. Oxman, The Future of the
United Nations Convention on the Law of the Sea, 88 AJIL 488, 493
(1994).
\3\ Panel on the Law of Ocean Uses, United States Interests in the
Law of the Sea Convention, 88 AJIL 167, 171 (1994) (hereinafter Panel
Study). The panel was chaired by Louis Henkin and included James M.
Broadus, Jonathan I. Charney. Thomas A. Clingan, Jr., John L. Hargrove,
Jon L. Jacobson, Terry L. Leitzell, Edward L. Miles, J. Daniel Nyhart,
Bernard H. Oxman, Giulio Pontecorvo, Horace B. Robertson, Jr., Louis B.
Sohn and James Storer. Other contributions of the Panel include U.S.
Interests and the United Nations Convention on the Law of the Sea, 21
Ocean Dev. & Int'l L. 373 (1990); Deep Seabed Mining and the 1982
Convention on the Law of the Sea, 82 AJIL 363 (1988); U.S. Policy on
the Settlement of Disputes in the Law of the Sea, 81 AJIL 438 (1987);
and Exchange Between Expert Panel and Reagan Administration Officials
on Non-Seabed Mining Provisions of LOS Treaty, 79 AJIL 151 (1985).
\4\ Elliot L. Richardson, Power, Mobility and the Law of the Sea,
58 Foreign Affairs 902 (1980).
\5\ Panel Study, supra note 3, at 172.
\6\ See supra note 2.
\7\ Id. at 496.
\8\ A comparison of the changes effected by the Implementing
Agreement with the objectives identified by President Reagan may be
found in Bernard H. Oxman, The 1994 Agreement and the Convention, 88
AJIL 687 (1994).
The Chairman. Gentlemen, we greet you and we ask that you
testify in the order that I have introduced you. First of all,
Admiral Watkins, we look forward to hearing from you.
STATEMENT OF ADMIRAL JAMES D. WATKINS, U.S. NAVY (RET.),
CHAIRMAN, U.S. COMMISSION ON OCEAN POLICY, WASHINGTON, DC
Admiral Watkins. Thank you very much, Mr. Chairman, and
thank you for inviting me to testify before your committee
today.
The Oceans Act of 2000 specifically charged the Commission
on Ocean Policy, of which I am the chairman, with developing
recommendations for a national ocean policy that will, among
other objectives, ``preserve the role of the United States as a
leader in ocean and coastal activities.'' With this charge in
mind and after hearing compelling testimony, our commissioners
unanimously adopted a resolution in support of United States
accession to the Law of the Sea Convention and provided that
resolution to the President, senior government officials, and
the leadership of this committee in November 2001.
In response, Secretary of State Colin Powell wrote that he
``shared our views on the importance of the convention'' and
then-Admiral Vernon Clark, Chief of Naval Operations, stated
that he ``strongly believed that acceding to this convention
will benefit the United States by advancing our national
security interests and ensuring our continued leadership in the
development and interpretation of the Law of the Sea.'' Copies
of this important correspondence exchange are attached to my
more lengthy written statement which I ask to be entered into
the record.
The Chairman. Let me just state at this point, all of the
statements that you have prepared will be entered in the record
in full, so there will be no need to ask for permission, and
proceed as each of you will in summarization.
Admiral Watkins. Thank you, Mr. Chairman.
Now I would like to share with you some of the reasons that
our commissioners unanimously support United States accession
to the Law of the Sea Convention. First, there are a series of
issues currently being considered under the convention which
would have tremendous economic implications for the United
States. The Law of the Sea Convention's Commission on the
Limits of the Continental Shelf is charged with reviewing
claims and making recommendations on the outer limits of the
continental shelf. Identification of these outer limits will
help establish a degree of certainty crucial to capital-
intensive deepwater oil and natural gas development. This is
particularly important to the United States, which is one of
the only few nations in the world with broad continental
margins.
The Continental Shelf Commission's future actions on claims
such as Russia's claims in the Arctic will directly impact U.S.
interests. If we do not become a party to the convention, we
will be unable to participate directly in resolution of these
issues of importance to U.S. economic interests.
Acceding to the Law of the Sea Convention will also allow
the United States to play an active leadership role in dealing
with a host of other issues with economic ramifications. As a
party to the convention, the United States will be able to
participate fully in International Seabed Authority efforts to
develop rules and practices that will govern future commercial
activities on the deep seabed. We will also be in a much
stronger position to protect navigational freedoms specified in
the convention, which are of particular importance to the
United States given the critical role maritime commerce plays
in our international trade and economic health.
Second, there is a security issue. The Law of the Sea
Convention provides core navigational rights through foreign
territorial seas, international straits, and archipelagic
waters and preserves critical high seas freedoms of navigation
and overflight seaward of the territorial sea, including in the
exclusive economic zone. The navigational freedoms guaranteed
by the convention allow timely movement by sea of U.S. forces
throughout the world and provide recognized navigational routes
which can be used to expeditiously transport the United States'
military cargo, 95 percent of which moves by ship.
However, there have been several instances of unilateral
assertions of jurisdiction which seem to disregard the
convention's clear meaning and intent relative to freedom of
navigation and overflight. The United States has challenged
some of the more excessive coastal State claims, relying on the
navigational freedom reflected in the convention.
There are also emerging issues that may affect the balance
of interests between navigational freedoms and coastal State
authority. The United States has important interests both as a
coastal State and as a major maritime power. We will be in a
much stronger position and a more credible position to
challenge excessive claims and to shape the future of issues
and outcomes that impact our interests if we are a party to the
convention.
Third, the Law of the Sea Convention provides a
comprehensive framework for protection of the marine
environment. The convention includes articles mandating global
and regional cooperation, technical assistance, monitoring and
environmental assessment, and establishes a comprehensive
enforcement regime. The United States is party to international
agreements which rely directly on this environmental protection
framework. The Coast Guard, which has played a lead role in
developing international agreements on maritime safety,
security, and environmental protection at the International
Maritime Organization, IMO, told our commission that a failure
to accede to the convention materially detracts from its
credibility when its representatives seek to rely on convention
principles and leaves important questions of implementation and
interpretation to others who may not share our views. Former
Coast Guard Commandant Admiral James Loy and the current
Commandant Admiral Thomas Collins told us that they strongly
support U.S. accession to the Law of the Sea Convention.
Mr. Chairman, there are many other examples of benefits
that would be derived from U.S. accession to the Law of the Sea
Convention. For instance, provisions in the convention could be
used by our researchers to expedite the approval process for
research in foreign maritime jurisdictions. Also, the U.S.
could participate in member selection, including the nomination
of U.S. candidates for the International Law of the Sea
Tribunal as well as the Continental Shelf Commission and the
various organs of the International Seabed Authority.
U.S. accession to the Law of the Sea Convention has
received bipartisan support from past and the current
administration. This administration is on record both before
the United Nations and at the recent G-8 meeting supporting
U.S. accession to the convention.
Mr. Chairman, the input received by our commission reflects
a broad consensus among many diverse groups in favor of
ratification. As you stated in your early statement today, 140
nations are already party to the convention.
There has been some suggestion that we simply continue to
rely selectively on the convention's provisions without
ratification. However, until we become a party to the
convention we cannot participate directly in the many bodies
established under the convention that are making decisions
critical to our interests. While we remain outside the
convention, we lack the credibility and position we need to
most effectively influence the evolution of ocean law and
policy.
There is little doubt that the framework provided by the
convention will evolve through clarification, interpretation,
and implementation decisions. It is interesting to note in this
regard that the convention will be open for amendment for the
first time beginning in 2004. In short, if we want to be a
leader in the continuing development of ocean law and policy, a
development that will have very substantial impacts on U.S.
vital interests, we first have to be in the game.
The Ocean Commission was asked to make recommendations to
preserve the role of the United States as a leader in ocean
activities. For the reasons I have outlined here this morning,
I renew our commission's unanimous call for the United States'
accession to the Law of the Sea Convention.
Thank you, Mr. Chairman, and I stand ready to answer
questions.
[The prepared statement of Admiral Watkins follows:]
Prepared Statement of Admiral James D. Watkins, USN (Ret.), Chairman,
U.S. Commission on Ocean Policy
Mr. Chairman. Thank you for inviting me to testify before your
Committee today on the important subject of United States accession to
the United Nations Law of the Sea (LOS) Convention.
The U.S. Commission on Ocean Policy has taken a strong interest in
the international implications of ocean policy since the inception of
our work. Our 16 Commissioners were appointed by the President--12 from
a list of nominees submitted by the leadership of Congress--and
represent a broad spectrum of ocean interests. The Oceans Act of 2000
(P.L. 106-256) specifically charged our Commission with developing
recommendations on a range of ocean issues, including recommendations
for a national ocean policy that ``. . . will preserve the role of the
United States as a leader in ocean and coastal activities.''
With this charge in mind, the Commission took up the issue of
accession to the LOS Convention at an early stage. At its second
meeting in November, 2001, the Commissioners heard testimony from
Members of Congress, federal agencies, trade associations, conservation
organizations, the scientific community and coastal states. We heard
compelling testimony from many diverse perspectives--all in support of
ratification of the LOS Convention. After reviewing these statements
and related information, our Commissioners unanimously passed a
resolution in support of United States accession to the LOS Convention.
The fact that this resolution was our Commission's first policy
pronouncement speaks to the real sense of urgency and importance
attached to this issue by my colleagues on the Commission.
The Commission's resolution was forwarded to the President, Members
of Congress, the Secretaries of State and Defense, and to other
interested parties. I have enclosed a copy of our resolution, and the
accompanying transmittal letters, for the record.
The responses we received have been very positive. Secretary of
State Colin Powell wrote that he ``shared our views on the importance
of the Convention,'' and Admiral Vern Clark, Chief of Naval Operations,
stated that he ``. . . strongly believe, [d] that acceding to this
Convention will benefit the United States by advancing our national
security interests and ensuring our continued leadership in the
development and interpretation of the law of the sea.''
Ensuing hearings, and the additional information we have gathered,
have served to reinforce our conviction that ratification of the LOS
Convention is very much in our national interest. I would like to share
with you some of the reasons that our Commissioners have unanimously
adopted this view of the Convention.
The LOS Convention was described by those who appeared before the
Ocean Commission as the ``foundation of public order of the oceans''
and as the ``overarching framework governing rights and obligations in
the oceans.'' The United States was involved in all aspects of the
development of the Convention, including reshaping the seabed mining
provisions in the early 1990's. As a consequence, the Convention
contains many provisions favorable to U.S. interests.
However, the foundation that the LOS Convention provides is subject
to interpretation and will no doubt continue to evolve through time.
The United States needs to be an active leader in this process, working
to preserve the carefully crafted balance of interests that we were
instrumental in developing, and playing a leadership role in the
evolution of ocean law and policy. Acceding to the Convention will
allow us to fully and effectively fulfill that leadership role, and
will enhance United States economic, environmental and security
interests.
For example, there are a series of issues currently being
considered by parties to the Convention which could have tremendous
economic implications for the United States.
Of particular importance is the work of the Convention's Commission
on the Limits of the Continental Shelf, which is charged with reviewing
claims and making recommendations on the outer limits of the
Continental Shelf. This determination will in turn be used to establish
the extent of coastal state jurisdiction over Continental Shelf
resources. There are several reasons why direct U.S. participation in
this process would be beneficial, namely:
The LOS Convention sets up the ground rules by which coastal
nations may assert jurisdiction over exploration and
exploitation of natural resources beyond 200 miles to the outer
edge of the continental margin. This is particularly important
to the United States, which is one of only a few nations in the
world with broad continental margins.
The continental margins beyond the United States' Exclusive
Economic Zone (EEZ) are rich not only in oil and natural gas,
but also appear to contain large concentrations of gas
hydrates, which may represent an important potential energy
source for the future.
The work of the Continental Shelf Commission in establishing
clear jurisdictional limits creates a degree of certainty
crucial to capital-intensive deepwater oil and natural gas
development projects. Industry representatives stressed to us
the importance of this certainty not only for potential
investment in energy resource development beyond our own EEZ,
but in U.S. industry participation in approved development
projects undertaken on other nation's Continental Shelves.
The work of the Continental Shelf Commission is now at a critical
stage. All current parties to the LOS Convention must submit their
Continental Shelf claims prior to 2009. The Commission's action on
these submissions will directly impact U.S. jurisdictional interests,
particularly in the Arctic. If we do not become a party to the LOS
Convention, we are in danger of having the world leave us behind on
issues of Continental Shelf delimitation because we will continue to be
ineligible to participate in the selection of members of the Commission
or nominate U.S. citizens for election to that body.
Acceding to the LOS Convention will also allow the United States to
play an active leadership role in a host of other issues of economic
importance. As a party to the Convention, the U.S. can participate
fully in International Seabed Authority efforts to develop rules and
practices that will govern future commercial activities on the deep
seabed. Currently, the U.S. is relegated to observer status.
As a party to the Convention, the United States will also be in a
much stronger position to ensure the preservation of the balance
between coastal state authority and freedom of navigation. The United
States, whose international trade and economic health relies so heavily
on maritime commerce, cannot afford to remain on the sidelines while
parties to the LOS Convention make decisions that directly impact
navigational rights and maritime commerce.
Further, the LOS Convention provides a comprehensive framework for
protection of the marine environment. The Convention includes articles
mandating global and regional cooperation, technical assistance,
monitoring and environmental assessment, and establishing a
comprehensive enforcement regime. The Convention specifically addresses
pollution from a variety of sources, including land-based pollution,
ocean dumping, vessel and atmospheric pollution, and pollution from
offshore activities. The principles, rights and obligations outlined in
this framework are the foundation on which more specific international
environmental agreements are based.
The United States is party to many international agreements--
including conventions pertaining to vessel safety, environmental
protection and fisheries management--which are based directly on the
LOS framework. Those United States representatives who participate in
the negotiation of these agreements are among the strongest advocates
for accession to the LOS Convention.
For example, the Coast Guard, which has played a lead role in
developing international agreements on maritime safety, security and
environmental protection at the International Maritime Organization
(IMO), and also participates in fisheries negotiations, told our
Commission that: ``[A] failure to accede to the Convention materially
detracts from United States credibility when we seek to advance our
various ocean interests based upon Convention principles. Also, as a
non-party, we risk losing our ability to influence international oceans
policy by leaving important questions of implementation and
interpretation to others who may not share our views.'' In testimony
before our Commission, then-Commandant Admiral James Loy, and more
recently the current Commandant, Admiral Thomas Collins, both strongly
supported United States accession to the LOS Convention.
From a security perspective, the LOS Convention provides a balance
of interests that protect freedom of navigation and overflight in
support of United States' national security objectives. The provisions
were carefully crafted during negotiation of the LOS Convention, and
reflect the substantial input that the United States had in their
development. In particular, the Convention provides core navigational
rights through foreign territorial seas, international straits and
archipelagic waters, and preserves critical high seas freedoms of
navigation and overflight seaward of the territorial sea, including in
the EEZ. The navigational freedoms guaranteed by the Convention allow
timely movement by sea of U.S. forces throughout the world, and provide
recognized navigational routes which can be used to expeditiously
transport U.S. military cargo--95 percent of which moves by ship.
The Convention's law enforcement provisions establish a regime that
has proven to be effective in furthering international efforts to
combat the flow of illegal drugs and aliens by vessel--efforts which
directly impact our nation's security. The Convention establishes the
rights and obligations of flag states, port states, and coastal states
with respect to oversight of vessel activities, and provides an
enforcement framework to expeditiously address emerging maritime
security threats.
However, there have been several instances of unilateral assertions
ofjurisdiction which seem to disregard the Convention's clear meaning
and intent relative to freedom of navigation and overflight. The United
States has unilaterally challenged some of the more excessive coastal
state claims, relying on the navigational freedoms reflected in the
Convention. There are also emerging issues that address the balance of
interests between navigational freedoms and coastal state authority.
The United States has important interests both as a coastal state and
as a major maritime power. We will be in a much stronger and more
credible position to challenge excessive claims, and to shape the
future of issues and outcomes that impact our interests, if we are a
party to the Convention.
There are many other examples of benefits that would be derived
from U.S. accession to the LOS Convention. For example, the U.S.
research fleet frequently suffers costly delays in ship scheduling when
other nations fail to respond in a timely manner to our research
requests. Currently, we are not in a position to rely on articles in
the Convention that address this issue, such as the ``Implied Consent''
article (Article 252) that allows research to proceed within 6 months
if no reply to the request has been received, and other provisions that
outline acceptable reasons for refusal of a research request. Also, as
a party to the Convention, the U.S. could participate in the member
selection process, including nominating our own representatives, for
the International Law of the Sea Tribunal, as well as the Continental
Shelf Commission and the various organs of the International Seabed
Authority that I have previously mentioned.
U.S. accession to the LOS Convention has received bipartisan
support from past and current Administrations. On November 27, 2001,
Ambassador Sichan Siv, U.S. Representative on the United Nations
Economic and Social Council, in his statement in the General Assembly
on Oceans and Law of the Sea, said: ``Because the rules of the
Convention meet U.S. national security, economic, and environmental
interests, I am pleased to inform you that the Administration of
President George W. Bush supports accession of the United States to the
[LOS] Convention.'' More recently the G-8 Summit held in June, 2003,
produced a G-8 Action Plan for Marine Environment and Tanker Safety
which stated: ``Specifically, we commit to: [1.1] The ratification or
acceding to and implementation of the United Nations Convention on the
Law of the Sea, which provides the overall legal framework for
oceans.''
Mr. Chairman, the input received by the U.S. Commission on Ocean
Policy reflects a broad consensus among many diverse groups in favor of
ratification of the LOS Convention. Over 140 nations are party to the
Convention. As I have described, there are many important decisions
being made right now within the framework of the Convention which will
impact the future of the public order of the oceans and directly impact
U.S. interests. Until we are a party to the Convention, we cannot
participate directly in the many bodies established under the
Convention that are making decisions critical to our interests.
While we remain outside the Convention, we lack the credibility and
position we need to influence the evolution of ocean law and policy.
That law and policy is evolving as the provisions of the Convention are
interpreted and implemented. It is interesting to note, in this regard,
that the Convention will be open for amendment for the first time
beginning in 2004. The Ocean Commission was directed by our enabling
legislation to make recommendations to preserve the role of the United
States as a leader in ocean activities. We cannot be a leader while
remaining outside of the process that provides the framework for the
future of ocean activities. For this reason, I renew our Commission's
unanimous call for United States accession to the United Nations Law of
the Sea Convention.
Thank you, Mr. Chairman. I stand ready to answer any questions that
the Committee may have.
[Attachments to statement.]
Commission on Ocean Policy
November 28, 2001
The President
The White House
Washington, D.C. 20500
Dear Mr. President:
On behalf of all 16 Members of the Commission on Ocean Policy, I
respectfully transmit a copy of the Commission's recently adopted
Resolution urging the accession of the United States to the United
Nations Law of the Sea Convention. Also enclosed is a copy of a cover
letter sent to the Chairman and Ranking Minority Member of the Senate
Committee on Foreign Relations providing the background and reasons for
the Commission's action.
As the letter makes clear, the Commission heard powerful testimony
in support of the Convention from a broad range of witnesses at two
days of hearings earlier this month. Additionally, a number of Members
have studied various provisions of this complex Convention prior to
being appointed to the Commission and have been convinced for some time
that there are compelling national security, jurisdictional,
environmental, and economic interests reasons for the U.S. to accede to
this international agreement. The enclosed letter also makes clear that
time is of the essence in such accession because of certain important
institutions established by the Convention in which U.S. participation
is critically important.
Mr. President, I urge your expeditious, special attention and
support for the Convention on the Law of the Sea and I have taken the
liberty of providing the Resolution and the letter to the Senate to the
Secretaries of Defense and State, with an identical request.
Respectfully,
James D. Watkins, Chairman
Admiral, U.S. Navy (Retired)
[Enclosures.]
Resolution of the Commission on Ocean Policy
The National Commission on Ocean Policy unanimously recommends that
the United States of America immediately accede to the United Nations
Law of the Sea Convention. Time is of the essence if the United States
is to maintain its leadership role in ocean and coastal activities.
Critical national interests are at stake and the United States can only
be a full participant in upcoming Convention activities if the country
proceeds with accession expeditiously.
Adopted by Voice Vote
November 14, 2001
Washington, D.C.
______
Commission on Ocean Policy
November 26, 2001
Hon. Joseph R. Biden, Jr., Chairman
Hon. Jesse Helms, Ranking Member
Committee on Foreign Relations
United States Senate
Washington, D.C. 20510-6225
Dear Mr. Chairman and Ranking Member:
This is to bring to your attention a policy resolution recently
adopted by the Commission on Ocean Policy urging ratification of the
United Nations Law of the Sea (LOS) Convention. The Commission is a 16-
member congressionally established body that is directed to submit to
Congress and the President a report recommending a coordinated and
comprehensive national ocean policy to promote a number of noteworthy
objectives.
One of those objectives is ``the preservation of the role of the
United States as a leader in ocean and coastal activities, and, when it
is in the national interest, the cooperation by the United States with
other nations and international organizations in ocean and coastal
activities'' (Section 2(8), P.L. 106-256). In this regard, the
Commission strongly believes that immediate accession to the LOS
Convention is in the national interest of the U.S. and one of the most
important steps that we can take to demonstrate such leadership and
cooperation.
At the second meeting of the Commission in Washington, D.C. on
November 13-14, 2001, the Commissioners heard testimony on a broad
range of ocean and coastal issues from Members of Congress, Federal
agencies, trade associations, conservation organizations, the
scientific community, and coastal states. Some of the most powerful
presentations were made in support of ratification of the LOS
Convention, particularly from the American Bar Association and the
offshore oil and gas industry. The Department of State representative
addressed the effects of our current non-party status and the benefits
of the Convention to the U.S.
A stable international legal framework for the determination of the
rights and responsibilities of nations with respect to adjacent oceans
and their resources is a necessary prerequisite for the Commission to
be able to assess the place of the U.S. in the community of coastal
states. The LOS Convention provides that framework for a whole host of
jurisdictional issues including the 12 mile territorial sea, the 200
mile Exclusive Economic Zone, and the continental shelf through its
full prolongation including those areas where it extends beyond 200
miles.
Although there are many more matters addressed by the Convention
that are in the economic and environmental interest of the United
States, there are some issues of immediate concern that call for the
expeditious consideration of the Convention by your Committee.
Specifically, the Continental Shelf Commission established by the
Convention has the responsibility to review submissions from coastal
states that have continental shelves extending beyond 200 miles to
establish the outer limits of their shelves. The U.S. has one of the
broadest continental margins in the world and our oil and gas industry
operates not only on our shelf but on the continental shelves of other
nations. Thus, a place on the Commission is critical to the protection
of our jurisdictional, resource management, and economic interests.
Elections to the 21 member Continental Shelf body are scheduled in
April of next year. To be in a position to nominate someone to the
Continental Shelf Commission, we must be a party to the Convention by
February, 2002. This situation also applies to the primary dispute
settlement institution of the Commission, the Law of the Sea Tribunal.
Seven of the Tribunal's judges will be elected in April and the U.S.
must be a party to the Convention if we want to nominate a candidate.
For these and many other reasons stated by officials from all walks
of American life, the Commission on Ocean Policy unanimously passed the
enclosed resolution in support of ratification of the Law of the Sea
Convention. I would note that the 16 members of the Commission were
appointed by the President, 12 from a list of nominees submitted by the
leadership of Congress, and represent a broad spectrum of ocean
interests.
As the president of the American Bar Association stated in his
testimony before the Commission, the LOS Convention is the ``foundation
of public order for the oceans.'' The interests of the United States in
the world community of coastal states and the work of our Commission in
recommending a comprehensive ocean policy is dependent on the stability
of that foundation. We urge that, notwithstanding the short legislative
calendar that remains this year, the Committee on Foreign Relations
consider and report out favorably the Convention on the Law of the Sea
prior to adjournment.
A copy of this letter is being forwarded to the President of the
United States and the Secretaries of State and Defense, urging their
special attention and support.
Sincerely,
James D. Watkins, Chairman,
Admiral, U.S. Navy (Retired).
______
THE SECRETARY OF STATE
washington
December 12, 2001
Admiral James D. Watkins, USN (Ret.),
Chairman, Commission on Ocean Policy,
1120 20th Street NW, Suite 200 North,
Washington, DC 20036.
Dear Admiral Watkins:
Thank you for sending me a copy of the unanimous resolution urging
accession of the United States to the United Nations Convention on the
Law of the Sea, adopted by the Commission on Ocean Policy at its second
meeting November 13-14, 2001.
The Commission's distinguished members were charged with developing
a national ocean policy to promote objectives that include preserving
the United States' role as a leader in ocean and coastal activities.
The resolution conveys a real sense of urgency, both through its words
and through its timing, as the Commission's first policy pronouncement.
Deputy Assistant Secretary Mary Beth West testified before your
Commission on November 14, explaining the detrimental effects of our
non-party status. You may be aware that Ambassador Sichan Siv, two
weeks later, announced at the UN General Assembly that the Bush
Administration supports U.S. accession to the Convention.
I am aware of the elections scheduled for April 2002 for members of
the Commission on the Limits of the Continental Shelf and for judges of
the International Tribunal for the Law of the Sea, and the benefits the
United States could expect from representation on those bodies. Please
be assured that we share your views on the importance of this
Convention and are working actively on it.
I extend best wishes as you undertake leadership of this important
Commission, whose report in the spring of 2003 will help to shape
national ocean and coastal policy for the 21st century.
Sincerely,
Colin L. Powell
______
Chief of Naval Operations
5 December 2001
Admiral James D. Watkins, USN (Ret.)
Commission on Ocean Policy
c/o Ocean.US
2300 Clarendon Boulevard, Suite 1350
Arlington, VA 22201-3367
Dear Admiral Watkins,
Thank you for your letter of November 29, 2001, advising that the
Commission on Ocean Policy unanimously adopted a resolution supporting
United States accession to the United Nations Law of the Sea
Convention.
Like you, I strongly believe that acceding to this convention will
benefit the United States by advancing our national security interests
and ensuring our continued leadership in the development and
interpretation of the law of the sea.
I appreciate your continued strong support of this convention and
the Navy.
Sincerely,
Vern Clark,
Admiral, U.S. Navy.
The Chairman. Thank you very much, Admiral Watkins.
Admiral Prueher.
STATEMENT OF ADMIRAL JOSEPH PRUEHER, U.S. NAVY (RET.), FORMER
U.S. COMMANDER-IN-CHIEF PACIFIC AND FORMER U.S. AMBASSADOR TO
CHINA, VIRGINIA BEACH, VA
Admiral Prueher. Good morning, Mr. Chairman. It is a
pleasure to be here with you this morning. Before I start I
would like to thank you for your sustained and level-headed
efforts for our national well-being.
As U.S. CINCPAC in 1998, I had written a letter to the
chairman of the Senate Foreign Relations Committee reflecting
then the DOD view, asking the committee to bring the U.N.
Convention on the Law of the Sea forward for ratification or,
at a minimum, to bring it forward for discussion. I hold the
same view now as a private citizen, only more so. My comments
today will reflect what I believe is a balanced view in support
of U.S. security, economic, and also diplomatic interests. I
trust I can be succinct and I will try not to overlap too much.
My perspective, as I have said, is of a private citizen.
But as a former U.S. CINCPAC, when that term was in vogue,
there were responsibilities for security interests in the Asia
Pacific region. Incorporated in those were the sea lanes, the
archipelagoes of Indonesia and the Philippines, the associated
sea lines, the South China Sea, the East China Sea, the Sea of
Okhotsk up near Japan, as well as those mentioned earlier by
Senator Stevens and by Admiral Watkins. We spent much time in
discussions on how to work these sealane issues.
A second perspective was as U.S. Ambassador to China in a
period encompassing some times of strained relationships
between us and China where negotiating required a solid and
well-founded U.S. position. Something like the U.N. Convention
on Law of the Sea would offer much in this area. From our
Nation's perspective, it is self-evident. We are the world's
greatest sea power, we are the world's greatest military and
economic power, and we rely on the world's oceans and our own
policies in order to maintain that position.
In addition to the military and the economic ventures,
there are also the environmental and conservation issues which
are so important, and increasingly so. So our policies must be
wise, far-sighted, effective, and as intellectually sound as we
can make them.
Turning to the legal issues, on which I lack expertise,
there seem to be three foremost issues to which the answer must
be yes for us to ratify this convention. One is, ``Will
accession to the convention better protect U.S. interests than
continued reliance on our customary international laws?'' The
second question is, ``Does the military activities exception
adequately protect U.S. interests?'' And third, ``Do the legal
implications of the convention strengthen or at least maintain
our ability to conduct our proliferation strategy initiative
and maritime interdiction operations?''
As I said, the answer to these questions should be yes. My
looking at this subject tells me the answer is so, but the
legal ramifications are outside any area of expertise that I
might have.
So what would be the benefits of U.S. accession? Admiral
Watkins has covered these quite well, I think, but I would say
that there are five. One is to codify and reinforce our
navigational freedoms. Second is to provide the U.S. Government
a strong legal foundation to deter and in fact defeat
encroachment efforts by nations that oppose our views. Third is
to enhance maritime interception ops and the PSI efforts. And
fourth is to allow the U.S. Government participation in key
institutions that will shape future activities. Some of these
activities and institutions are amendments to the U.N.
convention, dispute settlement tribunals, limits on the
continental shelf, and participation in the Commission on the
International Seabed Authority. The urgency, of course, is that
amendments come open for review in 2004 and our Nation needs to
be a player at that time.
The fifth item that is a benefit is it strengthens the
authoritative force of the U.N. Convention on the Law of the
Sea by virtue of having our Nation be a participant in it.
There are perhaps some risks to non-accession and they are
also fairly well known, but I would like to list four of them.
First is that walking away from the convention from our
Nation's point of view, sends, in my opinion, a needless
contentious signal to our partners in the nations with whom we
deal. If we walk away from it, we also lose a forum for dispute
resolution.
Third, reliance on the uncodified customary international
law would be more difficult than reliance on the U.N.
Convention on the Law of the Sea for resolution of disputes;
and possibly a walking away from the convention would increase
our difficulty in global mobility, both economically and
militarily.
To summarize, my view is that the benefits are strong in
the military, the economic, as well as in the political and in
the environmental sectors. Second, remaining outside of the
convention limits the U.S. ability to shape and prevent changes
that are inimical to our national interest and may encourage
excessive reliance on force for dispute resolution. Third, the
known risks of not acceding outweigh the possible risks of
accession.
Thank you very much for your courtesy.
The Chairman. Thank you very much, Admiral Prueher.
Professor Moore.
STATEMENT OF PROFESSOR JOHN NORTON MOORE, DIRECTOR, CENTER FOR
OCEANS LAW AND POLICY, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
CHARLOTTESVILLE, VA
Mr. Moore. Chairman Lugar, it is a privilege and a pleasure
to testify before the Senate Foreign Relations Committee on the
Law of the Sea Treaty. My congratulations to you on your
leadership in holding these important hearings. I would also
like to extend my congratulations to Senator Stevens for a
wonderfully important, clear statement and indeed for his
important advice to the Law of the Sea negotiators throughout
the years of those negotiations.
I had a very special pleasure as one of our LOS negotiators
in working with one of this committee's former chairmen,
Senator Pell, and I very much join your congratulations to him
and note of his great interest in this matter as well.
As you know so well, specific foreign policy problems tend
to last and last even beyond the Energizer Bunny. Achieving
closure with a recognized victory is rare. The Law of the Sea
Treaty is one such victory for the United States. The Senate
should give advice and consent at the earliest possible time.
United States leadership in the 1970s to protect U.S.
oceans interests and to establish a rule of law in the oceans
was enormously successful. We achieved full protection for our
vital security needs, particularly our naval and commercial
mobility. We solidified for the United States the largest area
of oil and gas and fisheries jurisdiction in the world. And,
Mr. Chairman, after President Reagan held firm on the problems
that were in the initial draft on deep seabed mining, the
United States successfully concluded a renegotiation in 1994
that met every single one of the conditions set by President
Reagan and by the Congress of the United States in the 1980
Hard Minerals Act.
Let me say that Senator Stevens again is absolutely correct
in his opening statement about how this renegotiation of part
11 met all of the United States' interests and it did indeed do
away with the problems, such as the mandatory technology
transfer that was a great mistake being pushed at that time by
the Group of 77. So I am delighted to say, Mr. Chairman, there
were initial problems that were overcome and part 11 ended up
consistent with United States national interests and
requirements.
Given the scope of the clear United States victory in these
negotiations, it is a source of puzzlement to some of us, Mr.
Chairman, as to why it has so far been 9 years for the United
States to move forward to ratification. Now, on this point, we
should make no mistake. Every day that goes by of United States
non-adherence inflicts costs on the security and economic
interests of this great Nation.
I believe that United States adherence will serve three
groupings of goals and I will summarize those and then very
briefly go through one or two points on each. The three are:
restoring United States oceans leadership, protecting United
States oceans interests, and enhancing United States foreign
policy.
The United States at the time of the negotiations, Mr.
Chairman, was the recognized leader in the world in oceans
matters. No other nation in the world has our range of oceans
interests. No other nation in the world provided the leadership
that we did on oceans matters. However, once the treaty had
moved forward and for 9 years we have not adhered, we have, I
am sorry to say, lost that leadership role. We can easily
regain it simply by moving forward with this treaty. I have no
doubt that we will almost instantly become the leader in world
oceans matters once again if we move forward with Senate advice
and consent.
In addition to that, as the previous witnesses have
indicated very effectively, there are a number of important
fora out there that the United States by not adhering to the
treaty is simply excluding itself from. We are minimizing our
voice in all of these different areas. With respect to the
International Seabed Authority we will take our seat on the
council and on the finance committee as soon as we adhere to
the treaty. Without being there, we do not have the ability to
cast a veto, for example, if funding were to go to a terrorist
``liberation'' group that we did not support. We would not have
a veto over the now developing mining code for cobalt crusts
and polymetallic sulfides; that is an area that, again, we
simply shoot ourselves in the foot by not participating in the
authority.
With respect to the International Tribunal for the Law of
the Sea, we have no judge at present, so we have no voice. We
have no voice in the meeting of States parties that
unfortunately is beginning to push to make changes in the
treaty, some of which are harmful. The United States can be a
powerful voice to prevent bad changes in the treaty if we are
permitted to participate actively as a member in the annual
meeting of States parties.
Then, of course, there is the Commission on the Limits of
the Continental Shelf, which ultimately will decide the crucial
matter of the important limits of the United States'
continental shelf and which, as Senator Stevens has indicated,
is right now considering a critically important Russian claim
in the Arctic. The United States by not participating has
simply excluded itself from being able to have a voice on
issues that are affecting us in a very vital and direct way.
The second general area supporting U.S. adherence is
protecting United States oceans interests more specifically.
Here let me just suggest that the single greatest risk to
United States oceans interests in the future as in the past, is
the potential loss of our naval mobility, and our security
interest in commercial mobility for the critical trade that
comes into and out of the U.S. by ship.
We have one great advantage in this treaty. We won those
issues big time and we won them unequivocally. It is a setting
where we have every advantage in simply telling other nations
that seek to violate the treaty that they must adhere to the
most widely adhered convention in the world. But when the
United States is not a party to the convention, it quite simply
forfeits that enormous advantage which we achieved by winning
decisively in the negotiation.
Let me just give you one specific example, Mr. Chairman,
from a very fine book by Mr. Roach and Mr. Smith on excessive
maritime claims. This comes from a statement by Iran when it
was signing the convention back in 1982. It made a declaration,
basically disputing our rights to go through the Strait of
Hormuz, which is critical for our oil supplies. Here is what it
said:
``It seems natural that only States parties to the Law of
the Sea Convention shall be entitled to benefits from the
contractual rights created therein. The above considerations
pertain specifically but not exclusively to the right of
transit passage through straits used for international
navigation.''
You can see very clearly they are using our non-party
status to try to challenge our legal ability to go through
Hormuz.We now have an opportunity for a very effective response
to this extreme position. We simply adhere to the treaty and
now their own declaration gets to be used against them to make
it clear that they have indicated if you are a party presumably
you have every right to the crucial navigational provisions.
Another important issue relates to the fisheries issues
that Senator Stevens I think very properly indicated as of
great importance here. Under the existing treaty law
obligations of the United States, the 1958 conventions, which
are terribly outdated, the United States has no rights to
control fish stocks beyond the 12 nautical mile territorial
sea. The new convention is absolutely clear on coastal State
control of its fish stocks within the 200 nautical mile
economic zone off its coast and in relation to the continental
margin. In those areas we completely control setting the
optimal yield. We completely control setting the allowable
catch. We completely control setting all of the kinds of
requirements for foreign access and for conservation measures.
So I think the Senator is absolutely right, coastal State
control of protecting those stocks is critical and the new
treaty does that very powerfully.
Further, on the second point, Mr. Chairman, let me point
out the great importance economically for the United States in
moving forward to develop the continental margin in areas
beyond the economic zone. I believe you have a chart up there
that has some yellow areas. The yellow areas on it are the
areas going beyond the 200 nautical mile zone, and the United
States oil and gas industry right now has the ability to begin
to move forward with the technology, in those areas, but by not
adhering to the treaty that is being held up significantly. Of
course, these are the areas in the end also that will be
subject at least to consideration in the Continental Shelf
Commission and we definitely want a voice in that
consideration.
Now, Mr. Chairman, turning to the last set of goals,
enhancing U.S. foreign policy, just two very brief comments. As
you know so well and have provided such fine leadership toward
in this committee, the United States has an enormous interest
in promoting the rule of law in the world's oceans. The rule of
law creates stable expectations, it reduces the risk of
conflict; it is one of our major long-term goals.
The LOS convention is one of the most important rule of law
conventions for the 20th century. It is very important for the
United States to move forward and to again affirm its
leadership, not just in oceans, but in the rule of law more
broadly.
Finally, a point that is too infrequently noticed; that is
the United States achieved a great success in a renegotiation
of this treaty. It was tough. We established our requirements,
we held to them, and the international community and our allies
eventually agreed and we were able to achieve every one of
those conditions.
If the United States in seeking to engage and renegotiate
other bad treaties seeks to give a series of conditions that
have to be met, unfortunately now we are hearing the refrain:
Why should we negotiate with you when we met all of your
conditions in the Law of the Sea and you have still not moved
forward? I believe, Mr. Chairman, that removing this argument
against us in foreign policy negotiations generally is of
considerable importance to success of the United States issues
going quite beyond the oceans area.
One last point--and that is that I do not know many
treaties or proposed legislation that come before the Senate
that do not involve some kind of substantial tradeoff. This is
not one of them. One of the extraordinary things about this
convention is there is not a single United States oceans
interest that would be better off by not adhering to the treaty
than if we move forward and promptly adhere to this treaty.
I have not said anything, Mr. Chairman, about the
proliferation initiative or the exclusion for military
activities. But if you would like to pursue any of these
subjects, I would be delighted to answer questions on them or
anything else. It has been a very special privilege to be here.
[The prepared statement of Professor Moore follows:]
Prepared Statement of Prof. John Norton Moore, Director, Center for
Oceans Law and Policy, University of Virginia School of Law
``The day is within my time as well as yours,
when we may say by what laws other nations
shall treat us on the sea.''
Thomas Jefferson
Chairman Richard G. Lugar and Honorable Members of the Foreign
Relations Committee:
Senate advice and consent to the 1982 Law of the Sea Convention is
strongly in the national interest of the United States. Ratification of
the Convention will restore United States oceans leadership, protect
United States oceans interests, and enhance United States foreign
policy. For these reasons the Convention is broadly supported by United
States oceans organizations, including the United States Navy (one of
the strongest supporters over the years), the National Ocean Industries
Association \1\, the United States Outer Continental Shelf Policy
Committee \2\, the American Petroleum Institute \3\, the Chamber of
Shipping of America \4\, The Center for Seafarers' Rights \5\, the
Chemical Manufacturers Association \6\, and the congressionally
established National Commission on Ocean Policy. \7\ This testimony
will briefly explore reasons for United States adherence to the
Convention. First, however, it will set out a brief overview of the
Nation's oceans interests and history of the Convention.
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\1\ On June 6, 2001, the National Ocean Industries Association
submitted a resolution to the Chairman of the Senate Foreign Relations
Committee declaring: ``The National Ocean Industries Association (NOIA)
is writing to urge your prompt consideration of the Convention on the
Law of the Sea. . . . The NOIA membership includes companies engaged in
all aspects of the Outer Continental Shelf oil and natural gas
exploration and production industry. This membership believes it is
imperative for the Senate to act on the treaty if the U.S. is to
maintain its leadership role in shaping and directing international
maritime policy.''
\2\ On May 24, 2001, the Outer Continental Shelf (OCS) Policy
Committee adopted the following recommendation: ``[T]he OCS Policy
Committee recommends that the Administration communicate its support
for ratification of UNCLOS to the United States Senate. . . .''
\3\ See the statement of Ms. Genevieve Laffly Murphy on behalf of
the American Petroleum Institute at the recent oceans forum of the
Center for Oceans Law and Policy, Oct. 1, 2003. Ms. Murphy stressed the
energy security interest of the American petroleum industry both in
access to the continental shelf beyond 200 miles and in protection of
navigational freedom. See also the letter from the president of the
American Petroleum Institute to the Chairman of the Senate Committee on
Foreign Relations of October 1, 1996, which states: ``The American
Petroleum Institute wishes to express its support for favorable action
by the Senate on the United Nations Convention on the Law of the Sea
(UNCLOS). API favors ratification of the revised treaty because it
promotes unimpeded maritime rights of passage; provides a predictable
framework for minerals developed; and, sets forth criteria and
procedures for determining the outer limit of the continental shelf.
The latter will be accomplished by the soon-to-be established
Commission on the Limits of the Continental Shelf.''
\4\ In a letter to the Chairman of the Senate Foreign Relations
Committee of May 26, 1998, the president of the Chamber of Shipping of
America writes: ``[t]he Chamber of Shipping represents 14 U.S. based
companies which own, operate or charter oceangoing tankers, container
ships, and other merchant vessels engaged in both the domestic and
international trades. The Chamber also represents other entities which
maintain a commercial interest in the operation of such oceangoing
vessels. Over the past quarter century, the Chamber has supported the
strong leadership role of the United States in the formalization of the
UN Convention on the Law of the Sea (UNCLOS) into its final form,
including revision of the deep seabed mining provision. We believe the
United States took such a strong role due to its recognition that
UNCLOS is of critical importance to national and economic security,
regarding both our military and commercial fleets. . . . Mr. Chairman,
we appreciate your consideration of these issues and strongly urge you
to place the ratification of UNCLOS on the agenda of your Committee.
The United States was a key player in its development and today, is one
of the few industrialized countries who have not yet ratified this very
important Convention. The time is now for the United States to retake
its position of leadership.''
\5\ On May 26, 1998, the Director of the Center for Seafarers'
Rights wrote the following in a letter addressed to the Chairman of the
Senate Foreign Relations Committee: ``The 1982 United Nations
Convention on the Law of the Sea creates a legal framework that
addresses a variety of interests, the most important of which is
protecting the safety and well-being of the people who work and travel
on the seas. I urge you to support ratification of the 1982 United
Nations Convention on the Law of the Sea.''
\6\ In a July 17, 1998 letter to the Chairman of the Senate Foreign
Relations Committee, the President of the Chemical Manufacturers
Association wrote the following: ``The Law of the Sea Convention
promotes the economic security of the United States by assuring
maritime rights of passage. More importantly, the Convention
establishes a widely-accepted, predictable framework for the protection
of commercial interests. The United States must be a full party to the
Convention in order to realize the significant benefits of the
agreement; and to influence the future implementation of UNCLOS at the
international level. On behalf of the U.S. chemical industry, I
strongly encourage you to schedule a hearing on UNCLOS, and favorably
report the Convention for action by the Senate.''
\7\ On November 14, 2001, the National Commission on Ocean Policy
adopted a resolution--its first on any subject--providing: ``The
National Commission on Ocean Policy unanimously recommends that the
United States of America immediately accede to the United Nations Law
of the Sea Convention. Time is of the essence if the United States is
to maintain its leadership role in the ocean and coastal activities.
Critical national interests are at stake and the United States can only
be a full participant in upcoming Convention activities if the country
proceeds with accession expeditiously.''
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background of the convention
As the quote by Thomas Jefferson illustrates, the United States,
surrounded by oceans and with the largest range of oceans interests in
the world, has a vital national interest in the legal regime of the
sea. Today those interests include naval mobility, navigational freedom
for commercial shipping, oil and gas from the continental margin,
fishing, freedom to lay cables and pipelines, environmental protection,
marine science, mineral resources of the deep seabed, and conflict
resolution. Consistent with these broad interests the United States has
been resolute in protecting its ocean freedoms. Indeed, the Nation has
fought at least two major wars to preserve navigational freedoms; the
War of 1812 and World War I. In point II of his famous 14 Points at the
end of World War I, Woodrow Wilson said we should secure ``[a]bsolute
freedom of navigation upon the seas . . . alike in peace and in war.''
And the Seventh Point of the Atlantic Charter, accepted by the Allies
as their ``common principle'' for the post World War II world, provided
``such a peace should enable all men to traverse the high seas and
oceans without hindrance.''
In the aftermath of World War II the United States provided
leadership in the First and Second United Nations Conferences to seek
to protect and codify our oceans freedoms. The first such conference,
held in 1958, resulted in four ``Geneva Conventions on the Law of the
Sea'' which promptly received Senate Advice and Consent. One of these,
the Convention on the Continental Shelf, wrote into oceans law the
United States innovation from the 1945 Truman Proclamation--that
coastal nations should control the oil and gas of their continental
margins. During the 1960's a multiplicity of illegal claims threatening
United States navigational interests led to a United States initiative
to promote agreement within the United Nations on the maximum breadth
of the territorial sea and protection of navigational freedom through
straits. This, in turn, led some years later, and with a broadening of
the agenda, to the convening in 1973 of the Third United Nations
Conference on the Law of the Sea. In this regard it should be clearly
understood that the United States was a principal initiator of this
Conference, and it was by far the preeminent participant in shaping the
resulting Convention. Make no mistake; the United States was not
participating in this Conference out of some fuzzy feel good notion.
Its participation was driven at the highest levels in our Government by
an understanding of the critical national interests in protecting
freedom of navigation and the rule of law in the world's oceans. Today
we understand even more clearly from ``public choice theory,'' which
won the Nobel Prize in economics, why our choice to mobilize in a
multilateral setting all those who benefited from navigational freedom
was a sound choice in controlling individual illegal oceans claims.\8\
And the result was outstanding in protecting our vital navigational and
security interests. Moreover, along the way we solidified for the
United States the world's largest offshore resource area for oil and
gas and fishery resources over a huge 200 nautical mile economic zone,
and a massive continental shelf going well beyond 200 miles.\9\
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\8\ The reason supporting this is most easily understood as the
high cost of organization of those affected by illegal oceans claims;
claims which were externalizing costs on the international community. A
multilateral strategy of response to such illegal claims, far from
being simply a fuzzy effort at cooperation, effectively enabled
coordination of nations to promote the common interest against such
illegal claims. Counter to the perception of some that a unilateral
U.S. response is always the best strategy, a multilateral forum was
indeed the most effective forum for controlling such threats to our
navigational freedom. Moreover, since a majority of coastal nations are
completely ``zone locked,'' that is, they have no access to the oceans
without traversing the 200 mile economic zones of one or more
neighboring states, a multilateral strategy continues to offer an
important forum for rebutting illegal unilateral oceans claims
threatening navigational freedom. The fact is, because of this ``zone
locked'' geography, a majority of nations should never either favor
extending national jurisdiction beyond 200 nautical miles nor
permitting interference with navigational freedom in the 200 nautical
mile economic zone.
\9\ The Convention powerfully supports United States control of its
fisheries resources. Indeed, with respect to fisheries, the United
States is already a party to the ``Agreement for the Implementation of
the Provisions of the United Nations Convention on the Law of the Sea
of 10 December 1982 Relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks,'' a treaty
that implements certain fisheries provisions of the Law of the Sea
Convention. Senator Ted Stevens provided crucial leadership in Senate
advice and consent to this implementing Convention.
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Despite an outstanding victory for the United States on our core
security and resource interests a lingering dispute remained with
respect to the regime to govern resource development of the deep seabed
beyond areas of national jurisdiction. Thus, when the Convention was
formally adopted in 1982, this disagreement about Part XI of the
Convention prevented United States adherence. Indeed, during the final
sessions of the Conference President Reagan put forth a series of
conditions for United States adherence, all of which required changes
in Part XI. Following adoption of the Convention without meeting these
conditions, Secretary Rumsfeld served as an emissary for President
Reagan to persuade our allies not to accept the Convention without the
Reagan conditions being met. The success of the Rumsfeld mission set
the stage some years later for a successful renegotiation of Part XI of
the Convention. In 1994, Part XI, dealing with the deep seabed regime
beyond national jurisdiction, was successfully renegotiated meeting all
of the Reagan conditions and then some. Subsequently, on October 7,
1994, President Clinton transmitted the Convention to the Senate for
advice and consent.\10\ Since that time no Administration, Democratic
or Republican, has opposed Senate advice and consent--and United States
ratification.
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\10\ For the letter of transmittal to the Senate and official
United States Government article-by-article commentary on the
Convention, see ``Sen. Treaty Doc. 103-39,'' reprinted in U.S.
Department of State Dispatch Supplement, Law of the Sea Convention:
Letters of Transmittal and Submittal and Commentary (Feb. 1995, Vol. 6,
Supp. No. 1). For the most authoritative article-by-article
interpretation of the Convention, see the multi-volume Commentary on
the United Nations Convention on the Law of the Sea 1982, prepared
under the auspices of the Center for Oceans Law and Policy of the
University of Virginia School of Law. ``Myron H. Nordquist (ed.),
United Nations Convention on the Law of the Sea 1982: a commentary''
(1985-2003 Martinus Nijhoff Publishers).
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At present the Convention is in force; and with 143 states parties
it is one of the most widely adhered conventions in the world. Parties
include all permanent members of the Security Council but the United
States, and all members of NATO but the United States, Denmark and
Canada--and Canada is expected to join in the immediate future as soon
as the European Union formally adopts an important fisheries agreement
implementing the 1982 Convention. The Convention unequivocally and
overwhelmingly meets United States national interests--indeed, it is in
many respects a product of those interests.
If one were to travel back in time and inform the high-level
members of the eighteen agency National Security Council Interagency
Task Force which formulated United States oceans policy during the
Convention process--an effort never matched before or since in the care
with which it reviewed United States international oceans interests--
that the Convention today in force, powerfully meeting all United
States oceans interests, would not yet be in force for the United
States nine years after being submitted to the Senate, the news would
have been received with incredulity. As this suggests, the Senate
should understand that United States oceans interests, including our
critical security interests, are being injured--and will continue to be
injured--until the United States ratifies the Convention. Among other
costs of non-adherence we have missed out on the formulation of the
mining code for manganese nodules of the deep seabed; we have missed
participating in the development of rules for the International Law of
the Sea Tribunal and the Commission on the Limits of the Continental
Shelf, and in ongoing consideration of cases before the Tribunal as
well as ongoing consideration of the Russian continental shelf claim
now before the Continental Shelf Commission; we have had reduced effect
in the ongoing struggle to protect navigational freedom and our
security interests against unilateral illegal claims; and we have been
unable to participate in the important forum of Convention States
Parties.
Why should the United States give advice and consent to the Law of
the Sea Convention? I will summarize the most important reasons under
three headings:
i. restoring united states oceans leadership
Until our prolonged non-adherence to the 1982 Convention, the
United States has been the world leader in protecting the common
interest in navigational freedom and the rule of the law in the oceans.
We have at least temporarily forfeited that leadership by our continued
non-adherence. United States ratification of the Convention will
restore that leadership. Specifically, ratification will have the
following effects, among others:
The United States will be able to take its seat on the
Council of the International Seabed Authority. The authority is
currently considering a mining code with respect to
polymetallic sulfides and cobalt crusts of the deep seabed.
Council membership will also give us important veto rights over
distribution of any future revenues from deep seabed
exploitation to national liberation groups;
The United States should, at the next election of judges for
the International Tribunal for the Law of the Sea, see the
election of a United States national to this important
tribunal. Since this Tribunal frequently considers issues
relating to navigational freedom and the character of the 200
mile economic zone it is a crucial forum for the development of
oceans law;
The United States should, at the next election of members of
the Commission on the Limits of the Continental Shelf, see the
election of a United States expert to the Commission. This
Commission is currently considering the Russian claim in the
Arctic that is of real importance for the United States (and
Alaska) and for appropriate interpretation of the Convention
respecting continental margin limits. Over the next few years
the Commission will begin to consider many other shelf limit
submissions, beginning next with Australian and Brazilian
claims. This is also the Commission that ultimately must pass
on a United States submission as to the outer limits of our
continental shelf beyond 200 nautical miles. The early work of
the Commission, as it begins to develop its rules and
guidelines, could significantly affect the limits of the United
States continental shelf. Not to actively participate in the
work of this Commission could result in a loss of thousands of
square kilometers of resource-rich United States continental
shelf;
The United States will be able to participate fully in the
annual meeting of States Parties that has become an important
forum for ongoing development of oceans law. Of particular
concern, United States presence as a mere observer in this
forum has in recent years led to efforts by some to roll back
critical navigational freedoms hard won in the LOS negotiations
where we were a leader in the negotiations and our presence was
powerfully felt; and
The United States will be far more effective in leading the
continuing struggle against illegal oceans claims through our
participation in specialized agencies such as the International
Maritime Organization; in bilateral negotiations such as those
with the archipelagic states; in acceptance by other states of
our protest notes and our ability to coordinate such notes with
others; and generally in organizing multilateral opposition to
threats to our oceans interests and the rule of law in the
oceans.
ii. protecting united states oceans interests
A second set of important reasons for United States adherence to
the Law of the Sea Convention relate to the particularized protection
of United States oceans interests. Some of the more important and
immediate of these include:
More effectively engaging in the continuing struggle to
protect our naval mobility and commercial navigational freedom.
Protecting the ability of the United States Navy to move freely
on the world's oceans and the ability of commercial shipping to
bring oil and other resources to the United States and for us
to participate robustly in international trade overwhelmingly
carried in ships is the single most important oceans interest
of the United States. This interest, however, is also the
single most threatened interest; the continuing threat being
the historic pattern of unilateral illegal oceans claims. As of
June 22, 2001, there were at least 136 such illegal claims \11\
This struggle has been the key historic struggle for the United
States over the last half century and gives every indication of
continuing. Adhering to the Convention provides numerous ways
for the United States to engage more effectively in protecting
these interests. An immediate and important effect is that we
are able on ratifying the Convention to attach a series of
crucial ``understandings'' under Article 310 of the Convention
as to the proper interpretation of the Convention, as have many
other nations--too many of which have made erroneous
interpretations as yet unrebutted by United States
statements.\12\ Moreover, as a party we will be far more
effective in multiple fora in protecting the many excellent
provisions in the Convention supporting navigational freedom.
Indeed, much of the struggle in the future to protect our vital
oceans interests will be in ensuring adherence to the excellent
provisions in the Convention. Having won in the struggle to
protect these interests within UNCLOS we now have a substantial
advantage in the continuing struggle--we need only insist that
others abide by the nearly universally accepted Convention.
Obviously, that is an advantage largely thrown away when we
ourselves are not a party. And for our commercial shipping we
will be able to utilize the important Article 292 to obtain
immediate International Tribunal engagement for the release of
illegally seized United States vessels and crew. It should be
emphasized that the threat from these illegal claims is that of
death from a thousand pin pricks rather than any single
incident in response to which the United States is likely to be
willing to employ the military instrument. Moreover, some of
the offenders may even be allies of the United States, our NATO
partners, or even over zealous officials in our own country who
are unaware of the broader security interests of the Nation;
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\11\ The best general discussion of these illegal oceans claims and
their effect on United States interests is ``J. Ashley Roach & Robert
W. Smith, Excessive Maritime Claims,'' 66 U.S. Naval War College
International Law Studies (1994), and ``J. Ashley Roach & Robert W.
Smith, United States Responses to Excessive Maritime Claims'' (2d ed.
1996).
\12\ United States ``understandings'' under Article 310 could
either be formulated and attached to the Convention by the Executive
Branch at the time the United States ratifies the Convention or they
could be attached to the Resolution of Senate Advice and Consent. I
believe the second of these alternatives would have the greatest effect
in the ongoing ``struggle for law'' as to the correct interpretation of
the Convention. Given the highly technical nature of these
understandings I would be pleased to work with the Committee to provide
a draft of understandings for your consideration. It should be clearly
understood that these are not ``reservations'' altering the correct
legal meaning of the Convention. Such reservations or exceptions are
barred by Article 309 of the Convention except as specifically
permitted by the Convention, as, for example, in Article 298 of the
Convention concerning optional exceptions to the compulsory dispute
settlement provisions.
More effective engagement with respect to security incidents
and concerns resulting from illegal oceans claims by others.
Examples include the new law of the People's Republic of China
(PRC) providing that Chinese civil and military authorities
must approve all survey activities within the 200 mile economic
zone, the PRC harassment of the Navy's ocean survey ship the
USNS Bowditch by Chinese military patrol aircraft and ships
when the Bowditch was 60 miles off the coast, the earlier EP-3
surveillance aircraft harassment, Peruvian challenges to U.S.
transport aircraft in the exclusive economic zone, including
one aircraft shot down and a second incident in which two U.S.
C-130s had to alter their flight plan around a claimed 650 mile
Peruvian ``flight information area,'' the North Korean 50 mile
``security zone'' claim, the Iranian excessive base line claims
in the Persian/Arabian Gulf, the Libyan ``line of death,'' and
the Brazilian claim to control warship navigation in the
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economic zone;
More rapid development of the oil and gas resources of the
United States continental shelf beyond 200 nautical miles. The
United States oil and gas industry is poised in its technology
to begin development of the huge continental shelf of the
United States beyond 200 miles (approximately 15% of our total
shelf). But uncertainties resulting from U.S. non-adherence to
the Convention will delay the substantial investment necessary
for development in these areas. Moreover, U.S. non-adherence is
causing the United States to lag behind other nations,
including Russia, in delimiting our continental shelf.
Delimitation of the shelf is an urgent oceans interest of the
United States; \13\
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\13\ For a state-of-the-art assessment of the extent of the United
States continental shelf beyond the 200 mile economic zone see the work
of Dr. Larry Mayer, the Director of the Center for Coastal and Ocean
Mapping at the University of New Hampshire. As but one example
indicating the great importance of performing this delimitation of the
shelf well--and the importance of the United States participating in
the resulting approval process in the Commission on the Limits of the
Continental Shelf--Dr. Mayer's work shows that sophisticated mapping
and analysis of the shelf would enable the United States to claim an
additional area off New Jersey within the lawful parameters of Article
76 of the Convention of approximately 500 square kilometers just by
using a system of connecting seafloor promontories. The work of Dr.
Mayer has been funded in part through an innovative forward-looking
grant supported by Senator Judd Gregg of New Hampshire. This work,
however, is important for the Nation as a whole, and particularly for
Alaska, which has by far the largest shelf beyond the 200 mile economic
zone.
Reclaiming United States deep seabed mineral sites now
virtually abandoned. United States firms pioneered the
technology for deep seabed mining and spent approximately $200
million in claiming four first-generation sites in the deep
seabed for the mining of manganese nodules. These nodules
contain attractive quantities of copper, nickel, cobalt and
manganese and would be a major source of supply for the United
States in these minerals. Paradoxically, ``protecting'' our
deep seabed industry has sometimes been a mantra for non-
adherence to the Convention. Yet because of uncertainties
resulting from U.S. non-adherence these sites have been
virtually abandoned and most of our nascent deep seabed mining
industry has disappeared. Moreover, it is clear that without
U.S. adherence to the Convention our industry has absolutely no
chance of being revived. I believe that as soon as the United
States adheres to the Convention the Secretary of Commerce
should set up a working group to assist the industry in
reclaiming these sites. This working group might then recommend
legislation that would deal with the industry problems in
reducing costs associated with reacquiring and holding these
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sites until deep seabed mining becomes economically feasible;
Enhancing access rights for United States marine scientists.
Access for United States marine scientists to engage in
fundamental oceanographic research is a continuing struggle.
The United States will have a stronger hand in negotiating
access rights as a party to the Convention. As one example of a
continuing problem, Russia has not honored a single request for
United States research access to its exclusive economic zone in
the Arctic Ocean from at least 1998, and the numbers of turn-
downs for American ocean scientists around the world is
substantial. This problem could become even more acute as the
United States begins a new initiative to lead the world in an
innovative new program of oceans exploration;
Facilitating the laying of undersea cables and pipelines.
These cables, carrying phone, fax, and Internet communications,
must be able to transit through ocean jurisdictions of many
nations. The Convention protects this right but non-adherence
complicates the task of those laying and protecting cables and
pipelines; and
It should importantly be noted in protecting United States
oceans interests that no U.S. oceans interest is better served
by non-adherence than adherence. This is an highly unusual
feature of the 1982 Convention. Most decisions about treaty
adherence involve a trade off of some interest or another. I am
aware of no such trade off with respect to the 1982 Convention.
United States adherence is not just on balance in our
interest--it is broadly and unreservedly in our interest.
iii. enhancing united states foreign policy
The United States would also obtain substantial foreign policy
benefits from adhering to the 1982 Convention; benefits going quite
beyond our oceans interests. These benefits include:
Supporting the United States interest in fostering the rule
of law in international affairs. Certainly the promotion of a
stable rule of law is an important goal of United States
foreign policy. A stable rule of law facilitates commerce and
investment, reduces the risk of conflict, and lessens the
transaction costs inherent in international life. Adherence to
the Law of the Sea Convention, one of the most important law-
defining international conventions of the Twentieth Century,
would signal a continuing commitment to the rule of law as an
important foreign policy goal of the United States;
United States allies, almost all of whom are parties to the
Convention, would welcome U.S. adherence as a sign of a more
effective United States foreign policy. For some years I have
chaired the United Nations Advisory Panel of the Amerasinghe
Memorial Fellowship on the Law of the Sea in which the
participants on the Committee are Permanent Representatives to
the United Nations from many countries. Every year our friends
and allies ask when we will ratify the Convention and they
express their puzzlement to me as to why we have not acted
sooner. In my work around the world in the oceans area I hear
this over and over--our friends and allies with powerful common
interests in the oceans are astounded and disheartened by the
unilateral disengagement from oceans affairs that our non-
adherence represents;
Adherence would send a strong signal of renewed United
States presence and engagement in the United Nations.
multilateral negotiation. and international relations
generally. At present those who would oppose United States
foreign policy accuse the United States of ``unilateralism'' or
a self-proclaimed ``American exceptionalism.'' Adhering to the
Law of the Sea Convention will demonstrate that America adheres
to those multilateral Conventions which are worthy while
opposing others precisely because they do not adequately meet
community concerns and our national interest;
Efforts to renegotiate other unacceptable treaties would
receive a boost when an important argument now used by other
nations against such renegotiation with us was removed. This
argument, now used against us, for example in the currently
unacceptable International Criminal Court setting, is: ``[W]hy
renegotiate with the United States when the LOS renegotiation
shows the U.S. won't accept the Treaty even if you renegotiate
with them and meet all their concerns?''; and finally
The United States would obtain the benefit of third party
dispute settlement in dealing with non-military oceans
interests. The United States was one of the principal
proponents in the law of the sea negotiations for compulsory
third party dispute settlement for resolution of conflicts
other than those involving military activities. We supported
such mechanisms both to assist in conflict resolution generally
and because we understood that third party dispute resolution
was a powerful mechanism to control illegal coastal state
claims. Even the Soviet Union, which had traditionally opposed
such third party dispute settlement, accepted that in the law
of the sea context it was in their interest as a major maritime
power to support such third party dispute settlement.\14\
conclusion
Senate advice and consent to the 1982 Convention on the Law of the
Sea is strongly in the national interest of the United States. There
are powerful reasons supporting United States adherence to the
Convention; reasons rooted in restoring U.S. oceans leadership,
protecting U.S. oceans interests, and enhancing U.S. foreign policy. I
would urge the Senate to support advice and consent to the 1982
Convention at the earliest possible time.
--------------
\14\ The 1994 submission of the LOS Convention to the Senate
recommended that the United States accept ``special arbitration for all
the categories of disputes to which it may be applied and Annex VII
arbitration [general arbitration] for disputes not covered by . . .
[this], and that we elect to exclude all three categories of disputes
excludable under Article 298.'' See U.S. Department of State Dispatch
IX (No. 1 Feb. 1995).
The Chairman. Well, thank you again, Professor Moore, for
being here and for your leadership throughout the years on this
issue.
Admiral Schachte.
STATEMENT OF REAR ADMIRAL WILLIAM L. SCHACHTE, JR., JAGC, U.S.
NAVY (RET.), CHARLESTON, SC
Admiral Schachte. Thank you very much, Chairman Lugar. I
would like to start by echoing what Professor Moore has said,
sir, about your leadership in this and other international
issues and, I might add from my own observations, your
tremendous insight and vision on foreign matters.
The Chairman. Thank you.
Admiral Schachte. It is an honor to appear before you today
and to be on this illustrious panel. I feel strongly that
accession to the Law of the Sea Convention is very important
from a national security perspective. I addressed this issue in
an article that was published in the Georgetown International
Environmental Law Review and I will attach a copy of that
article with my full statement.
Accession to the convention will help America reassert and
reassume our rightful place of leadership in these matters
relating to the global commons. I was an active participant in
Law of the Sea matters for many years. I was particularly
active in 1982 and 1983 when we in the Pentagon were confronted
with the decision against the seabed mining provisions of the
convention. Under those circumstances, we concluded that our
best option was to call the non-seabeds provisions of the
convention customary international law, although we knew that
the straits regime, the archipelagic regime, continental shelf
delimitation provisions, the exclusive economic zone, and other
provisions were all negotiated articles, articles that benefit
and enhance global maritime mobility for all nations, and these
articles also provided us with predictability and stability in
an otherwise changing environment.
Thus, in President Reagan's 1983 oceans policy statement we
in essence said that we were not going to sign or ratify the
convention, but that we would abide by and accept the non-
seabeds provisions of the convention. We were very careful in
saying this as we were somewhat creating an offer to the rest
of the world. If other nations would conform their actions to
the non-seabed provisions, we would honor those actions and we
would likewise conform our actions to those convention
articles.
We had fashioned our freedom of navigation program on the
convention. As you know, this important program directs our
naval and air assets to operate in a manner consistent with the
convention while the State Department also diplomatically
protested claims that were inconsistent with the convention. I
might add that maintaining this program is essential as the
convention alone is not enough, even with the United States as
a party. The navigational provisions of the convention must
continue to be exercised by our operational forces,
particularly in the maritime environment of the global commons,
an environment that has historically been one of claim and
counterclaim.
Accession to the convention would also enhance America's
credibility. As has been pointed out here this morning, the
world recognized eventually that we were right about seabed
mining and they fixed it. I must submit, this was undertaken
with the obvious anticipation that the United States would then
join our allies and many others who are parties to the
convention.
I would now like to briefly address three areas: customary
international law and challenges to military activities at sea,
mandatory dispute resolution, and the effect of the convention
on maritime intercept operations. Customary international law
and challenges. Not everyone agreed with our customary
international law interpretation 20 years ago, but from 1982 to
1994 we continued to exercise our navigational rights and
freedoms consistent with our interpretation of what those
rights and freedoms entailed, in an effort to solidify those
concepts as customary norms.
However, our ability to influence the development of
customary law changed dramatically in 1994 when the convention
entered into force. As a nonparty, we no longer had a voice at
the table when important decisions were being made on how to
interpret and apply the provisions of the convention. As a
result, over the past 10 or so years we have witnessed a
resurgence of creeping jurisdiction around the world. Coastal
states are increasingly asserting greater control over waters
off their coasts and a growing number of States have started to
challenge U.S. military activities at sea, particularly in
their 200 nautical mile exclusive economic zones.
For example, Malaysia has closed the Strait of Malacca, an
international strait, to ships carrying nuclear cargo. Chile
and Argentina have similarly ordered ships carrying nuclear
cargo to stay clear of their EEZ's. These actions are
inconsistent with the convention and customary law. But the
question comes, will other nations follow suit and thereby
establish a new customary norm that prohibits the transport of
nuclear cargo? Will the next step on this slippery slope be one
that would exclude nuclear-powered ships from so transiting?
China, India, North Korea have directly challenged U.S.
military operations in their EEZ as being inconsistent with the
Law of the Sea Convention and customary law. Again, these
actions of those countries are inconsistent with the convention
and customary law, but will other nations follow suit and
establish new customary norms that prohibit military activities
in the exclusive economic zone of those States without coastal
State consent?
If we are going to successfully curtail this disturbing
trend of creeping jurisdiction, we must reassert our leadership
role in the development of maritime law and, I submit, join the
convention now. The customary norms of the future will be
developed, as has been pointed out here this morning, by the
parties to the convention and the international forums it
creates, such as the International Tribunal on the Law of the
Sea, the Commission on the Limits of the Continental Shelf, and
the International Seabed Authority.
Unless we participate fully in these forums as a State
party, our ability to shape the development of new customary
norms in ways that are favorable to our national security and
economic interests will be lost.
Mandatory dispute resolution. The first point I would make
is that no country would subordinate its national security
activities to an international tribunal. No country would
subordinate its international security activities to an
international tribunal. This is a point that everyone
understood, and that is why article 286 of the convention makes
clear that the application of Compulsory Dispute Resolution
procedures of section 2 of part 15 are subject to the
provisions of section 3 of that same part, which includes a
provision that allows for military exemptions.
Some may try to argue that article 288 provides that in the
event of a dispute as to whether the court or tribunal has
jurisdiction that matter shall be settled by a decision of that
court or tribunal. However, article 288 is found in section 2
of part 15 and therefore does not apply to disputes involving
what the U.S. Government has declared in good faith to be a
military activity under section 3 of part 15.
I submit this interpretation is supported by the
negotiating history of the convention, which reflects that
certain disputes about military activities are considered in
essence to be so sensitive that they are best resolved by
diplomatic means.
It is very important that, while depositing an Instrument
of Accession, the United States should reemphasize this point
by making a declaration or an understanding that clearly states
that military activities are exempt from the Compulsory Dispute
Resolution provisions of the convention and that the decision
regarding whether an activity is military in nature is not
subject to review by any court or tribunal.
The effect of the convention on maritime intercept
operations. The convention has two particular articles that
people cite when they raise this issue as probably an
impediment. No. 1 is article 92 of the convention, which we
know provides that ships shall sail under the flag of one State
only and that basically that ship shall be subject to the
exclusive jurisdiction of that State while on the high seas.
One exception to the exclusive flag State jurisdiction over
its ships is found in article 110 of the convention, which is
the right of approach and visit. Article 110 allows a warship
to board a foreign flag vessel without flag State consent if
there are reasonable grounds for suspecting several things:
One, the ship is engaged in piracy or slave trade; the ship is
engaged in unauthorized broadcasting; or the ship is without a
nationality, basically; or if the ship is in reality the same
nationality of the approaching warship.
However, exclusive flag State jurisdiction and article 110
are not the only legal bases that can be used to interdict
vessels on the high seas. Other legal bases for stopping and
searching foreign flag vessels beyond the territorial sea
include: flag State or master's consent, authorization granted
by a U.N. Security Council resolution, as a condition of
entering port or internal waters, preexisting bilateral or
multilateral agreements or ad hoc arrangements which provide
advanced authority to board and inspect and search.
But I think primarily and basically the most important of
these rights is the inherent right of self-defense under
article 51 of the United States Charter. Additionally, under
the law of armed conflict there is the belligerent right of
visit and search.
Any one of these above legal bases can be used individually
or in combination to interdict suspect vessels on the high seas
and thus, I submit, successfully be used to continue our
extremely important fight on global terrorism.
That is my statement, Mr. Chairman. Again, it is an honor
to be with you. I would conclude by suggesting to Admiral
Prueher that I think my answer to your questions, admiral,
would be: better protect, yes; military exemption protects,
yes; proliferation strategy, yes; I think we are covered.
Admiral Prueher. Thank you.
Admiral Schachte. Thank you.
Thank you, Mr. Chairman.
[The prepared statement of Rear Admiral Schachte follows:]
Prepared Statement of Rear Admiral William L. Schachte, Jr., JAGC, USN
(Ret.)
Mr. Chairman, Members of the Committee, it is an honor to be here
before you today and to be on this illustrious panel which will address
issues related to the 1982 United Nations Convention on the Law of the
Sea. While I recognize that the Convention is beneficial from a number
of perspectives--in my opinion, the benefits to national security are
paramount. I addressed this issue in an article that was published in
the Georgetown International Environmental Law Review. I will attach a
copy of this article to my full statement.
First, accession to the Convention will be a significant step in
reaffirming America's place of leadership in matters relating to the
global commons. It was my good fortune as a Navy judge advocate to
actively participate in the final stages of the process that produced
the Convention, and in the interagency deliberations that followed in
1982-83. At that time, we in the Pentagon were confronted with the
decision not to support signature of the Convention because of the deep
seabed mining provisions. Under these circumstances we concluded that
our best option was to characterize the non-seabed provisions of the
Convention as customary international law--although we knew that
certain portions of the Convention, such as the straits and
archipelagic regimes, the exclusive economic zone, and the continental
shelf delimitation provisions, and others, were negotiated articles
that benefit and enhance maritime mobility for all nations and provide
predictability and stability in an otherwise changing environment.
Thus, in President Reagan's 1983 Oceans Policy Statement we, in
essence, said we weren't going to sign or ratify the Convention, but we
would abide by and accept the non-seabed provisions. This statement was
crafted carefully as we were somewhat creating an offer: if other
nations would conform their actions to the non-seabed provisions, we
would honor those actions, and we would likewise conform our actions to
those Convention articles.
In so doing, we effectively used the Law of the Sea Convention as a
basis for maintaining a ``persistent objector'' status towards
excessive maritime claims. Our goal was to prevent coastal nations'
maritime claims that were inconsistent with the Convention from
ripening into customary international law. This policy was facilitated
further by the Freedom of Navigation Program whereby we continued to
diplomatically protest excessive claims and conducted operational
assertions in conformance with the navigational provisions of the
Convention. I might add that maintaining that program is essential. The
Convention alone is not enough, even as a party. Our operational forces
must continue to exercise our rights under the Convention--particularly
in the maritime environment of the global commons, which historically
has been one of claim and counter claim.
Accession to the Convention will also enhance America's
credibility. The world recognized that we were right about seabed
mining and fixed it. This effort was undertaken with the obvious
anticipation that the U.S. would then join our allies and many others
who are parties to the Convention.
I will now briefly address three areas: customary international law
and challenges to U.S. military activity at sea, the effect of the
Convention on Maritime Intercept Operations, and Mandatory Dispute
Resolution.
customary international law
Not everyone agreed with our ``customary international
law'' interpretation 20 years ago, but from 1982 until 1994, we
continued to exercise our navigational rights and freedoms through
international straits, archipelagic waters and the EEZ consistent with
our interpretation of what those rights and freedoms entailed in an
effort to solidify those concepts as customary norms.
However, our ability to influence the development of
customary law changed dramatically in 1994 when the Convention entered
into force. As a non-Party, we no longer had a voice at the table when
important decisions were being made on how to interpret and apply the
provisions of the Convention.
As a result, over the past 10 years, we have witnessed a
resurgence of creeping jurisdiction around the world.
Coastal States are increasingly exerting greater control
over waters off their coasts and a growing number of States have
started to challenge U.S. military activities at sea, particularly in
their 200 nautical mile (nm) EEZ.
For example, Malaysia has closed the strategic Strait of
Malacca, an international strait, to ships carrying nuclear cargo.
Chile and Argentina have similarly ordered ships carrying nuclear cargo
to stay clear of their EEZs. These actions are inconsistent with the
Convention and customary law, but will other nations attempt to follow
suit and establish a new customary norm that prohibits the transport of
nuclear cargo? Will attempts be made to expand such a norm to include
nuclear-powered ships?
China, India, North Korea, Iran, Pakistan, Brazil,
Malaysia and others, have directly challenged U.S. military operations
in their EEZ as being inconsistent with the Law of the Sea Convention
and customary international law. Again, the actions by those countries
are inconsistent with the Convention and customary law, but will other
nations follow suit and attempt to establish a new customary norm that
prohibits military activities in the EEZ without coastal State consent?
If we are going to successfully curtail this disturbing
trend of creeping jurisdiction, we must reassert our leadership role in
the development of maritime law and join the Convention now.
The Parties to the Convention will develop the customary
norms of the future and the international forums it creates--the
International Tribunal for the Law of the Sea, the International Seabed
Authority and the Commission on the Limits of the Continental Shelf.
Unless we participate fully in these forums as a State Party, our
ability to shape the development of new customary norms in ways that
are favorable to our national security and economic interests will be
lost.
effect of article 110 on maritime intercept ops (mio's)
Some have suggested that becoming a Party to the LOS
Convention could impede our ability to engage in Maritime Interception
Operations to interdict terrorist and weapons of mass destruction at
sea. This is simply not accurate.
The United States has legally conducted MIO's at sea for
over 5 decades. These operations have been conducted using a variety of
legal bases that are consistent with customary international law and
our treaty obligations as a party to the 1958 Geneva Convention on the
High Seas. The provisions of 1958 Convention are mirrored in the 1982
LOS Convention.
Article 92 of the Law of the Sea (LOS) Convention provides
that ships shall sail under the flag of one State only and, save in
exceptional cases expressly provided for in international treaties or
in the Convention, shall be subject to its exclusive jurisdiction on
the high seas.
One exception to exclusive flag State jurisdiction is
found in Article 110 of the LOS Convention (right of approach and
visit). Article 110 allows a warship to board a foreign flag vessel
without flag State consent if there is reasonable grounds for
suspecting that
The ship is engaged in piracy or the slave trade
The ship is engaged in unauthorized broadcasting (in certain
situations)
The ship is without nationality or has been assimilated to
be a ship without nationality (i.e., sailing under the flags of
2 or more States)
The ship is, in reality, of the same nationality as the
approaching warship.
However, exclusive flag State jurisdiction and Article 110
are not the only legal bases that can be used to interdict vessels on
the high seas.
Other legal bases for stopping and searching foreign flag
vessels on the high seas (beyond the territorial sea) include:
Flag State or master's consent. This was recognized most
recently as a proper legal basis to interdict vessels at sea in
the 1988 UN Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances and in the 2000 The United
Nations Convention Against Transnational Organized Crime and
its Protocol to Suppress the Smuggling of Migrants by Land, Air
and Sea. The U.S. is a signatory to both of these agreements.
Authorization granted by a UN Security Council Resolution.
Examples would be the 1990 UN embargo against Iraq; the 1991 UN
embargo against Yugoslavia and the 1993 UN embargo against
Haiti.
As a condition of entering port or internal waters
Pre-existing bilateral or multilateral agreements or ad hoc
arrangements, which provide advance authority to board and
inspect/search. The U.S. has some 20-plus bilateral agreements
to conduct counter-narcotics operations.
The inherent right of self-defense under Article 51 of the
UN Charter. Examples would be the 1962 Cuban Missile Crisis;
the 1990 pre-UN embargo against Iraq (for two weeks by the U.S.
and UK as collective self-defense with Kuwait); post-911
terrorist MIO's and the Proliferation Security Initiative.
The belligerent right of visit and search under the Law of
Armed Conflict.
Any one of these legal bases can be used individually or
in combination to interdict suspect vessels on the high seas and
successfully continue the fight on the Global War on Terrorism.
mandatory dispute resolution
The first point I would make is that no country would
subordinate its national security activities to an international
tribunal. This is a point that everyone understood. That is why Article
286 of the Convention makes clear that the application of the
compulsory dispute resolution procedures of section 2 of Part XV are
subject to the provisions of section 3 of Part XV, which includes the
provision that allows for the ``military'' exemption.
Article 288 provides that in the event of a dispute as to
whether a court or tribunal has jurisdiction, the matter shall be
settled by decision of that court or tribunal.
Some may attempt to argue that Article 288 could be read
to authorize a court or tribunal to make a threshold jurisdictional
determination of whether an activity is a military activity or not and,
therefore, subject to the jurisdiction of the court or tribunal.
However, Article 288 is found in section 2 of Part XV. It
therefore does not apply to a dispute involving what the U.S.
Government has declared to be a military activity under section 3 or
Part XV.
This interpretation is supported by the negotiating
history of the Convention, which reflects that certain disputes,
including military activities, are considered to be so sensitive that
they are best resolved diplomatically, rather than judicially.
When depositing its instrument of accession, the United
States could re-emphasize this point by making a declaration/
understanding that clearly states that military activities are exempt
from the compulsory dispute resolution provisions of the Convention and
that the decision regarding whether an activity is ``military'' in
nature is not subject to review by a court or tribunal.
[Attachment.]
[Georgetown International Environmental Law Review--Summer, 1995]
Symposium Issue: Implementing the United Nations Convention on the Law
of the Sea: An International Symposium, January 27, 1995,
Georgetown University Law Center
Panel 2: International Security and the Law of the Sea Convention
National Security: Customary International Law and the Convention on
the Law of the Sea
(William L. Schachte, Jr.)
i. introduction
I am grateful for the opportunity this afternoon to provide my
views on the importance of becoming a party to the 1982 UN Convention
on the Law of the Sea Convention (Convention). Georgetown University
Law Center's initiative in providing a forum to discuss the importance
of the Convention comes at an opportune time. As Jack has just
discussed, the President has forwarded the Law of the Sea Convention to
the Senate for its advice and consent. If given, it will fulfill a
long-standing commitment shared with previous Republican and Democratic
administrations to participate in a stable, widely accepted, and
comprehensive legal regime for the world's oceans.
Other speakers will address the key national security interests in
the Convention. I would like to focus on what the United States has to
gain, in terms of a stable legal order, by becoming a Party to a
universally accepted Convention.
ii. why ratify the convention?
Opponents to the Convention are asking, ``Why accede to a
convention we rejected eleven years ago?'' ``What has changed in those
eleven years that makes accession to the Convention acceptable today?''
Others are saying, ``We've been operating outside the Convention all
this time; isn't the status quo acceptable?'' ``Since the argument is
that the Convention, for the most part, reflects customary
international law, what do we lose by failing to become a Party to the
Convention?''
In general, responses to these questions can be summarized in three
basic points. First, valid reasons for the rejection of the Convention
have been satisfied by the recent modifications to Part XI of the
Convention. Second, stability and predictability on, under, and over
the world's oceans is best assured by a universally accepted
comprehensive legal regime. Finally, now that the Reagan Administration
objections to the deep seabed mining have been accommodated, if the
United States is to re-assume its leadership role in international
oceans policy affairs, we must accede to the Convention.
iii. part xi objections and the 1994 agreement
Let me begin with the first point: what has changed in the last
eleven years to make the Convention now acceptable to the United
States?
As many of you are aware, our failure to sign the Convention when
it was opened for signature in 1982 was based on objections to Part XI
deep seabed mining provisions of the Convention. As far as the rest of
the Convention was concerned, the U.S. government has long maintained
that the United States accepts and will act in accordance with the
balance of interests relating to traditional uses of the oceans (such
as navigation and overflight) reflected in the Convention.
With regard to Part XI, our objections fell into two broad
categories: institutional issues and commercial considerations. On the
institutional front, we objected to the lack of adequate voting power
for the United States and other industrialized countries within the
seabed organization. From an economic and commercial standpoint, we
objected to mandatory technology transfer, production limitations,
onerous financial obligations on miners, and the establishment of a
subsidized international mining organization that would compete
unfairly with other commercial enterprises.
For the past several years, the United States and other
industrialized nations have been working intensively behind the scenes
to address these concerns. As a result of these efforts, an
international agreement that modifies Part XI of the Convention was
signed by the United States and sixty- nine other states on July 29,
1994. The Part XI Implementing Agreement eliminates the U.S. objections
to the deep seabed mining regime and paves the way for Senate action on
the Convention.
iv. why the convention?
With the recent modifications to the deep seabed mining regime, the
United States now has a rare window of opportunity to solidify the
vital navigational and resource issues addressed by the Convention. The
question is whether accession to the Convention at this time is in the
best interest of the United States.
Some opponents to the Convention maintain that the United States
already has its navigational rights vested by virtue of customary
international law. Therefore, they argue that the status quo is an
acceptable way of doing business.
One can certainly argue that we could continue to rely on the
protection of U.S. national security interests based on customary
international law. The United States, as a maritime power, could press
its rights unequivocally and, if necessary, unilaterally, when
obstacles to traditional ocean freedoms are encountered. Claims
inconsistent with the Convention would continue to be contested by
diplomatic protest and by operational challenges under the U.S. Freedom
of Navigation Program. However, the posture of relying on customary
international law is problematic for a number of reasons.
v. uncertainty of customary international law
First, customary international law is, by its very definition, a
fluid and changing concept. Vague on details, it is a constantly
evolving process created by claim and counterclaim. As a result, there
is much less agreement on the details of the customary Law of the Sea.
Therefore, customary international law does not provide the kind of
stability and predictability that we need for an uncertain political
landscape. By contrast, the Convention locks in the rules that promote
maximum maritime flexibility while at the same time ensures that
coastal state interests are accommodated. This balance between maritime
and coastal interests enhances the Convention's long term viability as
well as its widespread acceptability among diverse interest groups. In
short, the Convention will foster the legal stability that the United
States and the rest of the international community has sought for so
long.
The end of the Cold War has not changed the fact that many of our
economic, political, and military interests are located far away from
American shores. Recent events in Haiti, the Persian Gulf, the former
Yugoslavia, Somalia, and Rwanda serve as important reminders that we
still live in an uncertain and potentially dangerous world. While the
specific threats and challenges that the United States will face in the
years ahead undoubtedly will differ from those that dominated our
thinking over the past forty years, capable, vigilant forces will
continue to be required to deter aggression and, if deterrence fails,
to take necessary action.
The Convention provides the stability and predictability we seek to
ensure the flexibility and mobility for our military naval and air
forces, as well as our seaborne and airborne commercial activities
around the world. By serving as a source of authority, the Convention
guides the behavior of nations, promotes stability of expectations, and
provides a framework for issue resolution. In effect, it provides the
legal predicate for our armed forces to respond to crises expeditiously
and, importantly, at minimal diplomatic and political costs. And while
the Convention may not preclude all attempts by coastal and
archipelagic states to impede navigational freedoms, it puts the world
community on notice that these freedoms have a solid legal basis and
enjoy broad support among the major maritime and industrialized
nations.
vi. customary law and developing countries
Some states, especially developing nations, do not embrace
customary international law to the same extent that the United States
and other maritime powers do. Those states view it as a body of law
frequently formed without their participation and consent, law that
only promotes the interests of developed nations--often former colonial
powers. Developing countries prefer the relative certainty of
international agreements concluded on the basis of equality of nations.
Similarly, some Convention signatories, a number of whom are near
or adjacent to important waterways used for international transit, have
asserted that the Convention is a legal contract--and therefore its
rights and benefits, such as transit passage and archipelagic sea lanes
passage, are not available to non-parties. We do not accept these
claimed restrictions on international transit rights, but such issues
would be mooted under a universal Convention to which the United States
is a Party.
As a recent example of potential difficulties, in July 1994, in the
context of their right to exploit seabed resources in the strategic
straits of Malacca, Malaysia stated that the ``newness'' of the transit
passage regime casts doubts as to its status as a customary
international law principle.
vii. political and military costs of enforcement
Customary international law tends to be hard to enforce and
maintain. For example, eighteen states continue to claim territorial
sea in excess of twelve nautical miles. Thirteen states claim, historic
bays inconsistent with international law. More than sixty countries
delimit straight baselines along portions of their coast, many of which
are drawn inconsistently with international law. Also, more than twenty
states attempt to over-regulate their exclusive economic zones (EEZ),
contrary to the express provisions of the Convention.
Since 1979, the United States has formally contested excessive
coastal state claims, both operationally and diplomatically, through
the Freedom of Navigation Program. The program is based entirely on the
navigation and overflight provisions of the Convention. While this
program is designed to breathe life into the terms of the Convention,
Parties to the Convention are likewise capable of defining or refining
provisions of the Convention. By remaining outside the Convention, the
United States' only way of confronting attempts by Parties to the
Convention to interpret or refine Convention provisions would be by the
exercise of our naval and air forces in accordance with the existing
terms of the Convention. However, in presenting Admiral Center's paper,
Commander Rosen will discuss that this will be harder to do in the
years to come as we downsize. Also, as a nation committed to the rule
of law, the use of military force to resolve legal conflicts between
Parties and non-Parties to the Convention should not be the preferred
method of challenging excessive coastal state claims.
I would note that, in the case of the ``Black Sea Bumping
Incident,'' the United States and Soviet Union approached the legal
issues involved as would Parties to the Treaty in relying on the
Convention's rules on innocent passage to amicably resolve the issues
raised by the incident.
viii. unraveling regime
If the United States and other major maritime and industrialized
powers do not become parties to the Convention, there is a real
possibility and probability that the delicate balance that the
Convention provides in dealing with emerging issues of importance,
including environmental protection and resource conservation, would
simply begin to unravel. The Convention provides an excellent framework
for addressing and resolving contentious issues which, if attended to
solely on a bilateral basis, would undoubtedly give rise to increased
tensions and conflict elsewhere. Moreover, if the Convention does not
receive the support of the major maritime powers, it will lose its
restraining influence as law, and the United States will thus be hard
pressed to argue that the Convention continues to reflect customary
international law. As a result, insistence upon our navigational
freedoms, based on a traditional claim-counterclaim, customary
international law approach, would be costly diplomatically and
economically and could invite military resistance. It was this reality
that led us as a nation to undertake the prolonged negotiations that
resulted in the 1982 Convention. Moreover, the Convention's entry into
force and its wide acceptance properly forecloses any possibilities of
reopening negotiations.
ix. dispute settlement
Finally, dispute settlement under customary international law can
run the gamut from diplomatic intervention to economic sanctions, to
arbitration, to bringing an action before the International Court of
Justice. Bottom line, it is ad hoc, at best. The Convention, on the
other hand, contains an elaborate dispute settlement mechanism that
promotes compliance with its provisions and ensures that ocean disputes
will be settled in a peaceful manner. This mechanism is both flexible,
in that Parties have options as to how and in what fora they will
settle their disputes, and comprehensive, in that most of the
Convention's rules can be enforced through binding dispute resolution.
At the same time, however, the dispute settlement mechanism
accommodates matters of vital national concern by excluding certain
sensitive categories of disputes, such as fisheries management in the
EEZ, from binding dispute settlement. It also allows State Parties to
exclude other disputes, such as controversies involving military
activities, from the binding dispute settlement procedures.
As a State Party, the United States could enforce its rights and
preserve its prerogatives through peaceful dispute settlement under the
Convention, as well as encourage compliance with the Convention by
other State Parties.
x. u.s. leadership role in international oceans policy
The last point I would like to address is that of a resumption of a
clear leadership role for the United States in international oceans
policy affairs--an area where we have so much at stake.
As the preeminent global power in the 1990s and beyond, the United
States is uniquely positioned to assume a more visible leadership role.
The United States can lead the movement to the achievement of a widely
accepted international order, regulating and safeguarding the diverse
activities and interests regarding the world's oceans. The Convention
affords us the opportunity to lead in a way that protects and promotes
U.S. national security interests. To ensure a leadership role in this
important arena, the United States must become a party to the
Convention.
By remaining outside the Convention, our long-standing leadership
role in international ocean affairs, and in fora such as the
International Maritime Organization, would be further eroded. Moreover,
as an outsider looking in, we would not be in a position to influence
the Convention's further development and interpretation. In effect, as
mentioned earlier, by refusing to become a Party to the Convention, the
only way we could seek to influence changes in the LOS regime would be
through unilateral action, and that could lead to further
destabilization and increased international friction.
xi. conclusion
In conclusion, a universal regime for the oceans is needed to
safeguard U.S. security and economic interests, as well as to establish
public order and to defuse situations in which competing uses of the
oceans are likely to result in conflict. Remaining outside the Treaty,
continuing to rely on customary international law, would be an
imprecise approach to the problem, as well as one that would require
the United States to put forces into harm's way when principles of law
are not universally understood or accepted. The best way to guarantee
access to the world's oceans to conduct military naval and air
operations and engage in maritime commerce in the years ahead is for
the United States to become a Party to the Convention, as modified.
Most industrialized nations have either signed or indicated that
they will ratify the Convention, as modified. If we fail to become a
Party to the Convention, we will be alone among a few dissenters. This
may be our last opportunity to ``lock in'' those critical navigational
and overflight rights so essential to our economic and military
security. We may never mine the seabed, but we will, well into the
twenty-first century, daily operate under, on, and over the oceans of
the world as we meet our commercial and national security obligations.
It is those obligations that should drive a U.S. decision to ratify the
Convention.
The Chairman. Well, I thank each one of you. Let me just
preface the questions by saying that as the committee began its
deliberations this year Senator Biden and I asked our staffs to
take a look at work that has been done by able negotiators such
as yourselves in the past. A number of treaties have been
uncovered. The committee has dealt earlier this year with at
least two that dealt with the seas and that were very
constructive, I think in filling in gaps of previous
negotiations.
In the course of that research the Law of the Sea
Convention came to the fore. Many of you have gently raised the
question, and I did so as well in my own opening statement,
that although the issues that were cleared away in 1994
apparently led to a presumption that the treaty might be
forthcoming, it in fact was not. Today is the first day in 9
years or so that the treaty has been before us.
Many Members in the House and the Senate ask: Why now? Or
for that matter, what happened in the intervening 9 years? What
were the issues? I do not ask you to begin unraveling your
testimony by pointing out why for 9 years we were unlikely to
see the Law of the Sea before this committee, quite apart from
an advice and consent resolution. But can you just from
practical experience, for the benefit of those who will clearly
ask, please explain what is the down side?
You have touched upon some of the down sides in terms
particularly of the military exceptions, the problems of
national security. For example, our government has suggested
perhaps publicly the interdiction of materials or weapons of
mass destruction if they should go to sea on ships that may or
may not be from friendly or unfriendly nations. Nevertheless we
feel our national security in an age of a war against terrorism
could be affected. I know, Admiral Schachte, that you have gone
into this very specifically and in some detail. That is
important because these are issues that would clearly be raised
by the Department of Defense and the Navy in particular.
Senator Stevens has counseled us with regard to the seabed
and the amount of stock that grows, and that there ought not to
be intrusions, as he saw them, on those efforts of conservation
by other nations making claims. He asked the committee to be
vigilant in our work with regard to that. So these at least
begin to suggest some areas where people have had some
skepticism.
But just for the benefit of this hearing, could any of you
fill in why you feel there have been problems and why this
might have been the first time in 9 years the subject has been
raised?
Mr. Moore. Mr. Chairman, if it is appropriate I might take
a first shot at that, which I think is a very important
question. I believe that the major problem was an understanding
initially when the treaty was completed in 1982 that there were
a series of significant problems with part 11 on deep seabed
mining. The United States, for example, at that time had no
permanent seat on the Council of the Authority and the Soviets
had, in contrast, basically three votes on the Council of the
Authority at that point. There were also issues concerning
mandatory technology transfer and other things.
That negotiation, the renegotiation to resolve that, took
12 years. So you really had a perception from 1982 when the
initial convention was completed down to 1994 of problems with
the treaty, a 12-year perception I think, that lingered long
after the reasons for it had been removed.
Since that time there seem to be new, different kinds of
objections; each gets clearly answered and then others pop up--
it seems to me, frankly, to be more ideological after that
point than it is relating to any of the specifics in the
convention itself. I am prepared to stake my reputation on the
very simple point that there is not a single United States
oceans interest that is better off by our Nation not adhering
than it would be were we to adhere.
If I could for a moment just comment on at least two points
of the proliferation initiative and the dispute settlement
issue that were raised, which seem to be the sort of
questions--I am not sure objection is the right point, but the
questions du jour in relation to it. Indeed, Mr. Chairman, I
would suggest that it is very revealing that the questions du
jour seem to change from time to time and there is nothing
constant that anyone can really sink their teeth into here.
But if we were to look for a moment at the proliferation
initiative, which is very important--we all support that--that
initiative by its own terms clearly states that it is
consistent with all of the obligations under international law,
which certainly include the law of the sea. And when we
concluded the agreement with our 11 allies on this in Paris in
2003, once again the agreement specifically said that it seeks
to do nothing that would change the law of the sea, and I think
this understanding is something our allies strongly wanted.
The second point, Mr. Chairman, that does not seem to be
noticed very much in this discussion with respect to the
proliferations initiatives is that if there are any problems
whatsoever they are already problems we are bound by in the
1958 High Seas Convention and the Territorial Sea Convention.
There is absolutely nothing new as an obligation on the United
States in any way, shape, or form in the 1982 convention
inhibiting our ability on the proliferation initiative. Indeed,
I would say on something like dealing with the North Korean 50-
mile illegal military boundary zone, we are much more
powerfully able to go forward if we adhere to the treaty.
Finally, Admiral Schachte is absolutely correct, a terribly
important point: Nothing in this treaty in any way, shape or
form interferes with the right of individual and collective
defense of the United States. This is a treaty, like many
others, for peacetime settings. It does not govern security
settings in relation to the ability to use force lawfully under
article 51 or other provisions of the United Nations Charter.
Now with respect to the military exclusion issue du jour
that has been raised, article 298 is very clear that every
State party has the ability when adhering to the convention to
indicate that they seek to exclude military activities
altogether from any kind of dispute settlement provision. I was
Deputy Head of the U.S. delegation when that was negotiated and
I can assure you that it was done absolutely consistent with
the views of the Chairman of the Joint Chiefs, the Joint
Chiefs, and the United States Navy as to what we had to do in
protecting our security interests, and we were one of the
leaders in getting that provision.
I do not believe there is any risk whatsoever on that. In
fact Mr. Chairman, if you will permit a simple analogy. I
believe the chances of this article being interpreted the way
some are arguing and posing a risk to the United States is
about like your deciding not to hold this hearing today because
of the risk of the hearing room being hit by a meteorite. To be
frank, Mr. Chairman, this is a silly objection, and we have
heard a variety of silly objections over the years and I do not
believe that it is one that in any way takes away from our
moving forward.
The Chairman. When you have used the term ``ideological,''
is that last analogy an example of this? In other words, that
one has some faith that these hearings ought not to be held
because a meteorite, or something more substantial would come?
What is the ideology out there that finds this difficult?
Mr. Moore. Mr. Chairman, I am not sure that I would be able
to talk on behalf of these others; since I do not hold whatever
views they may have. I am not challenging that these issues are
raised in good faith. I think they are. I just think that there
has for some time been a concern perhaps that moving forward in
multilateral treaties such as this were perhaps not the way to
go.
My own view is that you move forward when a treaty is
strongly in your national interest as is this one, and you
refrain from moving forward when it is not, just as you would
as an individual with freedom to make such decisions. But I do
not think I could add much more than that to any of the
lingering skepticism I have seen over the years.
The Chairman. Perhaps that is one of the issues, that is
that there are witnesses from time to time who come before us
who are opposed to multilateral agreements. In other words, as
I understand their point of view, they believe that--
notwithstanding any of these agreements that we may have
ratified in 2 centuries of our history and so forth--many of
them are a mistake. They believe in essence, at least in the
current situation of our country in the world, that we ought
not to be inhibited by these sorts of agreements, that we ought
to simply proceed in our interests.
As I understand your testimony and that of the other
witnesses, you believe that our security interests and our
conservation or commercial interests and what have you are
enhanced by these agreements, by the fora that are presented
for resolutions of disputes, and by a sort of general coming
together of a lot of parties that otherwise might be at the
margins doing each other in all of the time without there being
these rules of the game or these margins, as I understand it.
Mr. Moore. Could I add that there is a powerful theoretical
reason for that in this case as well, that perhaps we did not
understand as well until the Nobel Prize in Economics was won
on something called public choice theory. That is, one of the
great problems here in this particular setting in protecting
our national interest is a series of unilateral coast State
claims. The only way you deal with those is actually to get a
multilateral setting where it becomes in the interest of the
international community as a whole basically to oppose those.
So this is a setting where you are trying to deal with
these coastal States externalizing costs on the community and
where you have got a majority of States with you
internationally, that you are far better off in a multilateral
negotiation, as we proved here by winning what we did.
The Chairman. Admiral Watkins, do you have any comment in
this discussion?
Admiral Watkins. I could never compete with John Norton
Moore on the details of the issue. Let me just say why the
commission picked this up in November 2001, 2 months after they
held their first hearing. We felt so strongly that the United
States needs to be the leader in the world in ocean matters
that we felt it would be an absolute oxymoron not to be a
signatory to this convention.
Recently, the administration at the G-8 summit in Europe
agreed to an Earth Observation summit here in the United
States, held a few months ago. You can imagine what it would be
like without being a signatory to this convention to establish
an international monitoring and observing system for coastal
and deep ocean areas. Can you imagine the complications
associated with claims that might be imposed upon the United
States were we not a signatory to this convention?
So we felt so strongly about it, we came to a conclusion--
it is the first conclusion we have come to since, by the way--
we are not that ecumenical right now. We are fighting on some
issues. But on this issue we were unanimous right off the bat,
and this is why we sent you a strong letter, feeling that if we
are to gain the respect internationally that we need in the
greatest of our natural resources, which is 71 percent of the
Earth, and if we do not take that leadership as the most
powerful Nation in the world, that we are making a huge
mistake.
To the best of my knowledge, all of the urgent issues that
were addressed in deep seabed mining aspects of this were
clarified, and therefore the expectation was there. Here again,
the leadership of the United States not stepping out in front
was a tragedy. Why are we doing this? Is it an anti-U.N.
feeling?
I was so pleased to see Laura Bush go over to France and
say: We are coming back into UNESCO. We need to get positive
about some of these international linkages, and I believe this
is one step that is a no-brainer. It is a win-win situation for
the United States to leap in and say: We are doing something
positive for our international leadership role in the world in
the most critically important natural resource, regarding
global climate change. We have not come to grips with the
global climate change issue because we will not do the things
that the ocean tells us to do, and those have to be negotiated
internationally, with an international body.
The IMO and the existing organizations are not sufficient
to deal with this without the leadership on board, in the game.
To heck with the umpires. You are only going to get an argument
with the umpire if you are in the game, and we need to get in
that game.
So we felt so strongly about it that we made this an issue
right up front and said this commission is not going to work
unless the United States is perceived internationally as a
leader in ocean matters. In this case we are talking about
ocean matters that happen to link with atmosphere and happen to
link with all the terrestrial observations that give us a
handle on what is going on in the planet in a realistic sense
so decisionmakers like you can do the right thing here and we
are not basing it--we hear words like ``scientific
decisionmaking,'' ``scientific-based decisionmaking.'' What is
the program? There is not any.
We hear about ecosystem-based management, in which all
these fisheries issues are linked with human beings who are
also in the ecosystem. What is the program? There is not any.
So this is the precursor, I think, of some very important
matters that the United States has to deal with on the oceans
of the world, terrestrial issues that are linked, and the
atmospheric issues that are linked. And we better get on with
it, and I consider this to be an urgent first step. While it is
not directly associated with everything we are doing on the
Ocean Commission, it is so germane to the leadership challenge
we were given in Oceans 2000 that we feel it is absolutely
essential.
The Chairman. Admiral, when will the Ocean Commission
report be made public or available?
Admiral Watkins. My executive director is in the room here,
Mr. Chairman, and he refuses to give me a date. But I am
pushing very hard for November to get it in the Federal
Register, which is required by the act under the Federal
Advisory Committee Act. That will then go to every Governor,
not just the 35 coastal States' Governors. We are giving it to
your Governor at home and every Governor in the Midwest. We are
calling the Great Lakes our northern ocean on the northern
coast. They believe that, we believe that. We have got all
States, all of our territories in the Pacific and so forth,
that give us this great, incredible, 200-mile EEZ base to work
from. Everybody is involved in the ocean.
The non-point source pollution issue associated with our
estuarine and riverine problems are severe and we have got to
deal with them. The jurisdictional problems associated with
that are tremendous. So it is not just international alone. We
have got a national problem of jurisdictional responsibilities
that we are not dealing with.
But if we do not have this linkage--and obviously everybody
we do in the oceans is co-owned by the other nations of the
world, so we have to be a player in that game. We cannot just
deal with our own ocean. We have got to deal with oceans like
the Arctic, which is very underserved and undertreated, and yet
it is critical to the climate change understanding and those
kinds of things, the great conveyor belt that moves the waters.
The freshening of the water up there is worrisome. Woods Hole
has said that within a decade we can lose that conveyor belt
just on the freshening of the water. We have lost 40 percent of
the ice depth and 3 percent of the ice up there. We know the
glaciers are moving.
So we have got to deal--the Defense Department is running a
study on what do we do, what is the strategic ramification of
an ice-free Arctic? Well, those are real questions, but they
are all linked to what we are talking about here--taking a lead
role in the driver of so much of the world's life. This is the
source of life, and we better get on with it.
And only the United States can take that leadership role.
it will cost us half of the investment, but we do that in
everything we do internationally, so it is nothing new. But the
other nations will come aboard. They want us to take this
leadership role.
Ideologically, I think it is the right answer. I do not
know why we have had this anti feeling about our international
relationships, but I have never seen it any worse than this,
and I think we have got to turn it around. Here is one
mechanism that is a no-brainer. On both sides of the aisle up
here on the Hill, we have not found any opposition to what we
are doing on the Ocean Commission to bring the international
side to bear so that we can get on with really understanding
what is going on around us.
The Chairman. Admiral Prueher, you have heard all of this.
Have you been stimulated?
Admiral Prueher. I happen to tune in very closely with
Admiral Watkins in another hat on the environmental issues and
the long-range part. I think, to address the, tactfully
phrased, ideological reservations, when we started looking at
this from a pragmatic view in 1998 we came at it from the
approach that we do not want to ratify what is to our advantage
to do this?
As we studied the U.N. Convention on the Law of the Sea as
it impacted our ability to do our security interests, and we
looked primarily at the military and diplomatic--less so at
economic interests, I must admit--but we came up with no
advantages to not ratifying the convention. I think the
situation, the world situation, has certainly changed since
then, but I think the answer to that question is the same, that
ratification accrues to our Nation a great many advantages and
no significant disadvantages.
The Chairman. Admiral Schachte.
Admiral Schachte. I want to thank you very much, Mr.
Chairman. I have been discussing these issues, as Admiral
Watkins passionately and I think quite eloquently pointed out,
from the perspective of the global commons. The only thing I
can conclude is that we were perhaps hoist on our own petard.
When we realized, as I mentioned in my testimony, that we had
no options, we needed the non-seabeds articles of the
convention, we needed those fleshed out with action, and we put
in place a very aggressive program that was actually started
under President Carter in 1978 in the Brzezinski memo setting
up the Freedom of Navigation Program, under which we would
operate consistently with the convention.
We really put a separate emphasis on that, developing a
Maritime Claims Manual so we would know where claims were that
were not consistent with the convention, and so on and so
forth, and we turned up the heat diplomatically, and pursued
that aggressively. That kind of took the heat off of what was
otherwise a--``despised'' is too strong, but a convention that
developed some adverse traction because of the seabed mining
provisions, which admittedly were the result of, let us say, a
capitalist father and a socialist mother. I mean, the original
seabeds regime was an incredibly complex thing that never would
have worked.
But the convention had that baggage, and it became quickly
a litmus test: Where are you on the Law of the Sea Convention?
If you are in favor of the convention, well, that is the end of
that discussion. And unfortunately I think that hangover stayed
with us for quite some time, and the success of our Freedom of
Navigation Program--I was involved in the Black Sea bumping
incident. We resolved that diplomatically. The Northwest
Passage, I was also involved in the resolution of that issue.
We resolved all of these things taking then out of a
bilateral context by referring to the convention, and we were
able to get away with that approach, as I said earlier, until
1994 when the convention entered into force and we were no
longer players.
I was also a part of a team that went out to the Pacific--
Indonesia, Fiji, Solomon Islands--and then to the Bahamas, and
other potential archipelagic claimants, trying to promote this
deal that we were making: If you follow the convention, we will
honor your claim.
We did it in Indonesia. We had to backdoor it through their
tax treaty making reference to the convention. In the
Philippine bases renegotiations, we stuck a section in that on
the archipelagic regime, knowing that that original concept
advocated by Minister Mochtar and others was that you draw
lines around their outermost islands and the result would be
the equivalent of a land mass, you cannot do anything in there
without permission of that island nation; it would have
crippled our mobility--it would have been totally unacceptable.
In fact, I was at the signing ceremony in Jamaica when
Minister Mochtar came in and met with Tom Clingan, Ambassador
Clingan, the head of our delegation. I happened to be in the
room. It was at lunchtime, and Mochtar just candidly said:
``Tom, how could you do this? We gave you all those
navigational articles, all those provisions''--he was much more
eloquent than that. ``But we did all of that, because we knew
you would be there with us as a leader to make the other
provision work.''
The only thing Ambassador Clingan could say was: ``Give us
time; wait it out.'' And they did. And they also fixed seabed.
And so now I guess these negative arguments continue to abound
by those who simply have this sense that was born in the early
Reagan days of, the convention was about seabed mining, an
awful thing, Third World giveaway, and so on and so forth.
I'm sorry, but that, as simplistic as that is, is an
explanation.
The Chairman. Let me ask: we have discussed the security
issues. Those usually come forward first, and properly so. We
have had a good number of people, not in talking about Law of
the Sea but in other fora, in treaties that we discussed
earlier this year, who are deeply concerned about overfishing
of the oceans generally. They brought charts and maps
illustrating what they were talking about and went through some
specific species of fish that have become nonexistent in
various parts of our oceans due to overfishing. They spoke
about the need to have a time out in some areas so that somehow
the stocks can be replenished for the good of humanity
generally, as well as for the fishing industries of whatever
nations might be involved.
Obviously, the issue of who is allowed to fish where and
who is responsible for all of this becomes contentious. But in
some cases there is not much dispute over whose waters these
are. It is a dispute within the fishing industry itself as to
how intensively people go at it and what the effects of all
this are going to be.
As you, each one of you, examine the Law of the Sea Treaty,
clearly one of the benefits in general is the conservation
ethic. We are an ecosystem and we cannot as human beings
overfish the seas and expect to retain an abundance of fish. In
fact, a sizable amount of these nutrients may be denied people.
Yet there are competing interests: fishermen and various
nations that back them, and maybe people who do not have that
much sensitivity about the ecosystem and sort of anticipate
that the Lord will provide and somehow the fish will still be
there.
To what extent is the problem of overfishing, or of these
competing rights that I described, more intense or acute now?
In your judgment, to what extent do we address this in the Law
of the Sea?
Admiral Watkins. Well, I know, Mr. Chairman, that when we
held hearings in Hawaii, for example, the longline fishermen
came forward to talk to us about their problems. The United
States has taken a strong position on such things as sea
turtles and others being caught up as bycatch in the fishing
business. Yet the United States adheres to its own rules in
deep waters on longline fishing. Other nations do not in the
Pacific, and they are free to go into areas south of certain
latitudes north and go ahead and use longlines with any bycatch
they pick up. There is also some indication--and maybe Admiral
Prueher can talk about this a little bit--about how the numbers
are adjusted, annual catch and the volume and the tonnage that
are picked up in bycatch and other things that do not really
reflect what is going on, which is probably an enforcement
problem internationally.
So these are real problems. The cross-boundary issues with
Canada on lobsters up in the Northeast, those are issues. And
there are some strange provisions in the law that do not allow
the locals, you might say, in the maritime regions in Canada
and our Northeast group, the Governors in the coastal regions
there, to negotiate a deal between themselves. It has to go up
to a higher level convention.
These are difficult hurdles to get over. So there are some
funny little quirks in the way we operate internationally. I
think the Magnuson-Stevens Act goes a long way to setting up
the protection barriers against the overfishing that was done
by these great trawlers that roll in there and suck up all the
fish, including all the bycatch that goes with it, and
rejecting them, which is a large number, like 25 percent.
So the overfishing issue I think we tried to get a handle
on in Magnuson-Stevens 30 years ago, but it also needs
adjustment now, and it certainly needs a friendly negotiation
protocol between the people who really understand these fish
and how they migrate. And if we have an El Nino event in which
the pollock go north and become Canadian citizens, we have to
recognize that. They do not pay any attention to the
jurisdictional boundaries that we have set up politically.
Therefore, these kinds of issues again would be better
resolved were we a signatory to this convention and say, you
know, there are some rules of the game here, and we ought to be
conservation-minded as well as taking advantage of the protein
that is out there for the good of our people. So we can do
both. We do not have to have them be mutually exclusive, but
they need to be in part of the negotiation.
I think it is very inconsistent for the nations that are
co-signers to this to take different positions on conservation
relative to the norm, which ought to be adjudicated through an
international body in my opinion. So we see this across all the
hearings that we go to, that there is an international
component here that is frustrating our own ability to manage
the resources from the United States' point of view, when it is
relatively irrelevant if all the other nations, the larger
nations in the Asian waters, for example, can longline at will
with whatever bycatch they pick up, however they want to report
the annual tonnage.
The Chairman. Admiral Prueher.
Admiral Prueher. I really cannot address the tonnages that
Admiral Watkins referred to, but the issue as I see it is every
so often, from a security point of view, an overfishing event
or a fishing event in someone else's EEZ will erupt into a
security issue and sometimes, particularly in Northeast Asia,
these things will erupt into shooting. So like the ideological
reservations about this treaty, restrictions are imposed
anytime one signs a treaty. That is one point of view.
The other point of view is that a well crafted treaty gives
a framework, a codification, and a dispute resolution basis for
resolving not only the environmental and the overfishing
issues, but the security issues as well, without having to go
into actual armed conflict about it, which is prevention, which
is what I think we are after.
The Chairman. Mr. Moore.
Mr. Moore. Mr. Chairman, that is a very important set of
issues you raised on the protection of fish stocks globally and
other broad environmental issues generally. Let me just say in
relation to the Law of the Sea Treaty that it was an
extraordinarily important advance in protecting global fish
stocks. Before that what we had is a setting in which once you
got beyond the territorial sea there was no legal regime to
enable a management system coextensive with the range of the
stocks, which is the starting point for effective management of
fish stocks. You have got to have a management system
coextensive with the stock; whether it is a coastal stock or
highly migratory stock, or whatever it may be.
By extending the coastal State economic jurisdiction to 200
nautical miles plus the areas of the margin beyond that for the
creatures of the shelf, the lobster, et cetera, of the shelf
that went beyond that, we completely solved that problem; what
the economists used to call the common pool problem in global
fisheries. So now what we have in place is the coastal State
management systems, and in addition to that we have this
wonderful new implementing convention that the United States
already has in force for itself, actually implementing a
section of the Law of the Sea Treaty on the straddling stocks
and highly migratory species.
When you put those two together, it gives us for all of our
stocks a very solid management jurisdiction. What we have to
do, of course, and the issues that both admirals I think
addressed very well, relates to what your management system is,
how you work it, how you negotiate with others, and I think the
point made by both that we would be far better off in our
continuing negotiations in this to be a member are absolutely
true.
One last point on the treaty environmentally generally.
When it came to the oceans as an environmental area at Rio at
the Earth summit, the Law of the Sea Treaty was so far ahead of
all the other areas in relation to the environment that
basically Rio simply said: For the environment, it is the Law
of the Sea Treaty; that is what we look to.
The Chairman. Professor, let me just ask, is it your
perception that our government--and this is over the course of
several years--has a sound conservation program with regard to
fish, that the problem is not an intramural one in our country,
but rather it is an external problem with regard to others who
may not respect our conservation ethic?
Mr. Moore. Mr. Chairman, I have not studied that like the
commission has and so anything I said on it would not be
particularly informed, and so, if you do not mind, I will not
answer that. But let me make a general observation about world
fisheries management as a whole. I believe that once we solve
the problem of management systems, the next problem is you have
to have proper management in all of the areas under national
jurisdiction. And in this respect I believe one of the greatest
single problems globally is oversubsidization of the fishing
industry in general. The figures are hard to get, but some of
the World Bank figures suggest we are subsidizing worldwide to
the tune of about $20 billion. So when stocks are declining
dramatically and we are spending taxpayer funds around the
world of approximately $20 billion to subsidize, I suggest that
is really one of the major problems here.
The Chairman. Admiral Schachte.
Admiral Schachte. Thank you very much, Mr. Chairman. I
cannot add much. I definitely agree with Admiral Prueher's
observations. Just going through the articles pertaining to
living resources myself, I must acknowledge that,
interestingly, we have a recognized expert on this matter here
in the hearing room today, Mr. Tucker Scully, who spent a lot
of time in the State Department effectively managing these very
difficult issues.
But the convention provides the framework under which these
various programs can work. And a government such as ours--in a
country as large as ours, and our government with our diverse
interests and areas, we are often schizophrenic on matters
because there is a pull of different interests. But I think
that the convention clearly provides the framework for
effective resource management and this is critically important.
Again back to the leadership role, oftentimes an
international treaty will either provide a floor or a ceiling
on an issue. Here I think it will provide a ceiling so we can
contain and resolve this serious problem.
The Chairman. Let me ask if there are other considerations
that any of you have thought of at this stage that you would
like to proceed with? Yes, sir.
Mr. Moore. Mr. Chairman, you might find it of interest. I
was just handed from a good friend of mine who was formerly the
legal counsel to the Senate Foreign Relations Committee from
1979 to 1984, Mr. Fred Tipson, his answer to this problem of
where did the opposition come from. It is a very interesting
answer. His answer was that the major reason for U.S. failure
to ratify was the classic free rider problem in economic
theory, perceptions that the U.S. could get all the benefits of
the treaty without the need to move forward to ratification.
I think there is a lot of truth in that as part of the
lingering misperception problem. Let me just say that I think,
as this panel has unanimously indicated, we did not get all the
benefits without ratification. There are huge costs that we are
paying by not moving forward.
The Chairman. Well, that is a very helpful addition. We
thank all who are participating in the hearing, giving some
additional thoughts.
We will have another hearing in a week, in which members of
the administration will be speaking for our government, and we
look forward to that testimony. I appreciate very, very much
your coming this morning. Your prepared statements, as well as
the additional responses to questions, I think have been very
helpful as members of the committee and our staffs study what
you have said and, more importantly, as the general public has
the benefit of that record.
It is my hope, as I mentioned in the opening statement,
after our second hearing to proceed to try to draft the proper
advice and consent resolution, with consultation with other
colleagues, including as we mentioned Senator Stevens and
Senator McCain. There may be others. Likewise, we may have need
to come back to you for final considerations as we take a look
at it.
My thought with regard to the timetable of action early
next year comes from the fact that I believe the Senate will
adjourn at some point. At least I am advised that that is the
intent of the majority leader. If that should be erroneous and
we simply continue on, well, then that would perhaps change our
committee schedule, too. In any event, your commission report
will probably be delivered to us during that period of time,
Admiral Watkins, and we will benefit from that. Likewise, other
additional materials that any of you have as experts and
veterans in this field would be much appreciated.
Having said that, the hearing is adjourned.
[Whereupon, at 11:10 a.m., the committee adjourned, to
reconvene at 9:30 a.m., October 21, 2003.]
THE U.N. CONVENTION ON THE LAW OF THE SEA (TREATY DOC. 103-39)
----------
TUESDAY, OCTOBER 21, 2003
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met at 9:33 a.m., in room SH-216, Hart Senate
Office Bldg., Hon. Richard G. Lugar (chairman of the
committee), presiding.
Present: Senator Lugar.
The Chairman. This hearing of the Senate Foreign Relations
Committee is called to order.
Today the committee meets to continue its consideration of
the U.N. Convention on the Law of the Sea. Last Tuesday, the
committee heard testimony on the convention from a
distinguished panel of experts, including the Chairman of the
U.S. Commission on Oceans Policy, a former Commander-in-Chief
of U.S. forces in the Pacific, and two former negotiators of
the Convention. They made several important observations about
the convention.
First, they noted that the convention holds important
benefits for United States national security. Freedom of
navigation and overflight across the world's oceans is of
paramount importance to our military's ability to protect
United States security interests worldwide. The convention
provides extensive legal protections for navigation and
overflight rights that the United States worked hard to achieve
during negotiation of the convention. The panel observed that
these protections will strengthen the ability of the United
States to respond to excessive territorial claims by other
countries and to ensure that key sea and air lanes remain open
to the United States as a matter of legal right.
Second, they noted that the treaty offers important
economic benefits for the United States. The Convention
enshrines our ability to explore and to exploit the natural
resources of the ocean out to 200 miles from our shore. These
include large reserves of oil and gas, as well as fisheries
resources. The Convention also protects our ability to develop
the resources of the broad continental margin of the United
States beyond 200 miles, an area comprising an estimated
370,000 square miles. We heard that the legal certainty
provided by the Convention with respect to control of these
resources is important to the willingness of industry to make
the investments necessary to develop them.
Third, our panel of experts underscored the Convention's
importance for the protection of the marine environment. The
Convention has been described as ``the strongest comprehensive
environmental treaty now in existence.'' It addresses pollution
from a variety of sources, including land-based pollution,
ocean dumping, vessel and atmospheric pollution, and pollution
from offshore activities. Its provisions have provided the
framework for a number of subsequent agreements, including the
1995 U.N. Fish Stocks Agreement, to which the United States
became party in 1996 with the help of Senator Stevens'
leadership.
Fourth, our panel emphasized that ratifying the Law of the
Sea Convention is important to the ability of the United States
to exercise influence over oceans issues. By staying outside
the treaty, we forfeit our membership in institutions that will
make decisions about the future of the oceans, and we increase
the risk that such decisions will be contrary to our interests.
Next year the treaty will be open for amendment, creating the
possibility that other nations may seek to roll back the
protections our negotiators worked so hard to win.
These are compelling arguments in favor of ratifying the
convention, and I believe that the Senate should move swiftly
to do so. Today's hearing is the next step in this process.
We are pleased to be joined by two distinguished panels
representing the U.S. Government and the private sector.
On our first panel, we will hear from representatives of
the Bush administration. We have been in touch with the
leadership of the National Security Council, and we have been
advised the President has expressed his support for this
Convention. We welcome five officials to discuss it. With us
this morning are Mr. John F. Turner, the State Department's
Assistant Secretary for Oceans and International Environmental
and Scientific Affairs; Mr. William H. Taft, IV, the Legal
Adviser for the State Department; Mr. Mark T. Esper, the
Defense Department's Deputy Assistant Secretary for
Negotiations Policy; Admiral Michael G. Mullen, Vice Chief of
Naval Operations for the United States Navy; and Admiral John
E. Crowley, Chief Counsel and Judge Advocate General for the
United States Coast Guard.
On our second panel, we will hear from Mr. Paul L. Kelly,
senior vice president of Rowan Companies, Inc., who represents
the American Petroleum Institute, the International Association
of Drilling Contractors, and the National Ocean Industries
Association; Admiral Roger T. Rufe, Jr., president and CEO of
the Ocean Conservancy; Ms. Randi Thomas, national
representative of the U.S. Tuna Foundation; and finally, we
will hear from Mr. Joseph J. Cox, president of the Chamber of
Shipping America.
[The opening statement of Senator Lugar follows:]
Opening Statement of Senator Richard G. Lugar
Today the Committee meets to continue its consideration of the UN
Convention on the Law of the Sea. Last Tuesday, the Committee heard
testimony on the Convention from a distinguished panel of experts,
including the Chairman of the U.S. Commission on Oceans Policy, a
former Commander-in-Chief of U.S. Forces in the Pacific, and two former
negotiators of the Convention. They made several important observations
about the Convention.
First, they noted that the Convention holds important benefits for
U.S. national security. Freedom of navigation and overflight across the
world's oceans is of paramount importance to our military's ability to
protect U.S. security interests worldwide. The Convention provides
extensive legal protections for navigation and overflight rights that
the United States worked hard to achieve during negotiation of the
Convention. The panel observed that these protections will strengthen
the ability of the United States to respond to excessive territorial
claims by other countries and to ensure that key sea and air lanes
remain open to the United States as a matter of legal right.
Second, they noted that the treaty offers important economic
benefits for the United States. The Convention enshrines our ability to
explore and exploit the natural resources of the ocean out to 200 miles
from our shore. These include large reserves of oil and gas, as well as
fisheries resources. The Convention also protects our ability to
develop the resources of the broad continental margin of the United
States beyond 200 miles, an area comprising an estimated 370,000 square
miles. We heard that the legal certainty provided by the Convention
with respect to control of these resources is important to the
willingness of industry to make the investments needed to develop them.
Third, our panel of experts underscored the Convention's importance
for the protection of the marine environment. The Convention has been
described as ``the strongest comprehensive environmental treaty now in
existence.'' It addresses pollution from a variety of sources,
including land-based pollution, ocean dumping, vessel and atmospheric
pollution, and pollution from offshore activities. Its provisions have
provided the framework for a number of subsequent agreements, including
the 1995 UN Fish Stocks Agreement, to which the United States became
party in 1996 with the help of Senator Stevens' leadership.
Fourth, our panel emphasized that ratifying the Law of the Sea
Convention is important to the ability of the United States to exercise
influence over oceans issues. By staying outside the treaty, we forfeit
our membership in institutions that will make decisions about the
future of the oceans, and we increase the risk that such decisions will
be contrary to our interests. Next year the treaty will be open for
amendment, creating the possibility that other nations may seek to
rollback the protections our negotiators worked so hard to win.
These are compelling arguments in favor of ratifying the
Convention, and I believe that the Senate should move swiftly to do so.
Today's hearing is the next step in this process. We are pleased to be
joined by two distinguished panels representing the U.S. government and
the private sector.
On our first panel, we will hear from representatives of the Bush
Administration. We have been in touch with the leadership of the
National Security Council, and we have been advised that the President
has expressed his support for this Convention. We welcome five
officials to discuss it. With us this morning are Mr. John F. Turner,
the State Department's Assistant Secretary for Oceans and International
Environmental and Scientific Affairs; Mr. William H. Taft, IV, the
Legal Adviser for the State Department; Mr. Mark T. Esper, the Defense
Department's Deputy Assistant Secretary for Negotiations Policy;
Admiral Michael G. Mullen, Vice Chief of Naval Operations for the U.S.
Navy; and Admiral John B. Crowley, Chief Counsel and Judge Advocate
General for the U.S. Coast Guard.
On our second panel, we will hear from Mr. Paul L. Kelly, Senior
Vice President of Rowan Companies, Inc., who represents the American
Petroleum Institute, the International Association of Drilling
Contractors and the National Ocean Industries Association; Admiral
Roger T. Rufe, Jr., President and CEO of the Ocean Conservancy; Ms.
Randi Thomas, National Representative of the U.S. Tuna Foundation; and,
finally, we will hear from Mr. Joseph J. Cox, President of the Chamber
of Shipping America.
We welcome all of our distinguished witnesses and look forward to
their insights on this treaty.
Panel I
The Chairman. We welcome all of our distinguished witnesses
and look forward to their insights on this treaty. I will now
call upon the first panel to testify in this order. First of
all, Mr. Turner, then Mr. Taft, Mr. Esper, Admiral Mullen, and
Admiral Crowley. Mr. Turner.
STATEMENT OF HON. JOHN F. TURNER, ASSISTANT SECRETARY, BUREAU
OF OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC
AFFAIRS, DEPARTMENT OF STATE, WASHINGTON, DC
Mr. Turner. Mr. Chairman, good morning. I certainly
appreciate this opportunity to appear with my colleagues from
the administration to testify on the U.N. Convention on the Law
of the Sea and the agreement on implementation.
Mr. Chairman, this administration has concluded that there
are many important reasons for the United States to become a
party to this convention and we strongly endorse the Senate
proceeding with its advice and consent as soon as possible.
As the world's leading maritime power with the longest
coastline and the largest exclusive economic zone in the world,
the U.S. benefits more than any other nation from this
convention. It enhances U.S. objectives as a major maritime
power with worldwide interests in military and commercial
navigation, in communications, in protection of the marine
environment, and in furthering marine scientific research. The
convention provisions on navigation and overflight, as well as
the balance reflected in its jurisdictional articles, preserve
the right of the United States military to use the world's
oceans to meet national security requirements and of commercial
vessels to carry seagoing cargoes. The rule of law as embodied
in the convention underpins U.S. leadership and security.
The convention recognizes the coastal State's sovereign
rights over the exploration and development of mineral
resources, including oil and gas, found in the seabed and the
subsoil of the shelf. It lays down specific criteria and
procedures for determining the outer limits of the shelf. It
also protects freedom to lay submarine cables and pipelines.
The convention promotes the resource and environmental
interests of the United States as a coastal State, including
strong obligations to conserve and manage living marine
resources and to protect the marine environment from all
sources of pollution, combined with broad and exclusive
jurisdiction over living and nonliving resources off our
coasts. The convention's provisions on fisheries are entirely
consistent with U.S. domestic fisheries laws, as well as our
international fisheries agreements and understandings.
The convention's regime of access for marine scientific
research will support the U.S. role as a leader in efforts to
understand our oceans, including their role in global
processes.
As to actual costs of being a party to the convention, our
annual contribution to the convention's institutions would be
about $3 million, in our view a bargain.
As of today, Mr. Chairman, 143 parties, including most of
our major allies, have joined the convention. It is time for us
to take this unique opportunity to demonstrate U.S. leadership
and credibility on oceans issues by becoming a party to the
reformed Law of the Sea.
Mr. Chairman, the United States obviously has basic and
enduring national interests in our oceans. Pursuit of our
oceans objectives requires careful and often difficult
balancing of those interests. As a coastal nation, for example,
we naturally are concerned about control over the waters off
our shores. Just as often, as a major maritime power, we worry
about efforts on the part of others to limit freedom of
navigation.
Moreover, traditional perceptions of the inexhaustibility
of marine resources and the capacity of the oceans to
neutralize wastes have changed, as marine species have been
progressively depleted by harvesting and their habitats damaged
or threatened by pollution and a variety of human activities.
Maintaining the productive capacity of the oceans while seeking
to meet the economic aspirations of growing populations
requires difficult choices.
Striking these balances must also be viewed in the
international context. Living resources, of course, migrate
across the jurisdictional lines that human beings draw on maps.
Marine ecosystems and ocean currents transport pollutants and
otherwise affect the environmental interests extending across
maritime boundaries. National security and commercial interests
are also international in scope. Achievement of ocean policy
objectives thus requires international cooperation.
The United States has consistently taken the view that
these interests are best protected through a widely accepted
international framework governing uses of the sea. Since the
late 1960s, each U.S. administration has recognized this goal
as the cornerstone of United States oceans policy. Following
adoption of the convention in 1982, it has been the policy of
the United States to act in a manner consistent with its
provisions relating to traditional uses of the oceans and to
encourage other countries to do likewise.
It is time for the United States to become a party to the
convention because of the substantive benefits to the United
States; because U.S. adherence will promote the stability of
the legal regime for oceans; and because U.S. accession will
demonstrate to the international community that when it
modifies a regime to address our concerns, we will join that
regime.
Becoming a party to the convention represents the highest
priority of this administration and also the United States
international oceans policy, I believe, which also is a
bipartisan priority. And to this end, we urge rapid and
favorable action on these treaties by the U.S. Senate.
I am now pleased to yield to my colleague from the State
Department, Will Taft, Chief Counsel for Secretary Powell, who
can provide you with input on some of the specific provisions
of the convention and the agreement. Thank you, Mr. Chairman.
[The prepared statement of Mr. Turner follows:]
Prepared Statement of Hon. John F. Turner, Assistant Secretary of
State, Bureau of Oceans and International Environmental and Scientific
Affairs, Department of State
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to testify on the 1982 United Nations
Convention on the Law of the Sea (``the Convention'') and the 1994
Agreement relating to the Implementation of Part XI of the United
Nations Convention on the Law of the Sea of 10 December 1982 (``the
1994 Agreement'').
i.
Overview
This Administration has concluded that there are important reasons
for the United States to become a party to this Convention and to do so
now.
For many years, the United States has been seeking to assert its
oceans interests as a non-party to the Convention. While we have had
considerable success in doing so, our efforts will be enhanced by
becoming a party. The Convention, as amended by the 1994 Agreement,
offers an accepted and acceptable international framework within which
to pursue and secure our oceans interests with greater certainty and
with fewer political and economic disadvantages than we could otherwise
achieve.
The reformed Convention applies stable and predictable rules to the
uses of the oceans. It does not answer every question, but it provides
the only generally accepted framework for resolving new oceans issues
as they arise. By becoming party to the Convention, the United States
will thus maximize its influence over the outcome of these wide-ranging
issues.
As the world's leading maritime power, with the longest coastline
and the largest exclusive economic zone in the world, the United States
will benefit more than many other nations from the provisions of the
Convention. The Convention enhances U.S. objectives as a major maritime
power with worldwide interests. Its provisions on navigation and
overflight, as well as the balance reflected in its jurisdictional
articles, preserve the right of the U.S. military to use the world's
oceans to meet national security requirements, and of commercial
vessels to carry sea-going cargoes. The rule of law as embodied in the
Convention underpins U.S. leadership and security.
The Convention promotes the resource and environmental interests of
the United States as a coastal State, including strong obligations to
conserve and manage living marine resources and to protect the marine
environment from all sources of pollution, combined with broad and
exclusive jurisdiction over living and non-living resources off our
coasts. The Convention's provisions on fisheries are entirely
consistent with U.S. domestic fisheries laws and well as our
international fisheries agreements and understandings.
In fact, the most innovative international fisheries agreements
developed in the last decade have as their basis the Convention's
statements of the obligations of each party to conserve and manage
living marine resources in their own EEZs and on the high seas. The
United Nations Fish Stocks Agreement, the FAO Compliance Agreement, the
new convention on highly migratory species in the Western and Central
Pacific, and recent bilateral agreements we have negotiated are
elaborations on these obligations. Effective implementation of these
forward-leaning agreements can bring about an end to rampant
overfishing in the years to come. Becoming a party to the Convention
will only strengthen our hand in addressing this serious issue.
The Convention's regime of access for marine scientific research
will support the U.S. role as a leader in efforts to understand the
oceans, including their role in global processes. Such research is
critical for addressing problems associated with the use and protection
of the marine environment.
Through its dispute settlement provisions, the Convention provides
peaceful and effective mechanisms to ensure compliance by Parties with
the Convention, thereby restraining unreasonable claims and
interpretations and contributing to a stable international order.
As to actual costs of being a party, our annual contributions to
the Convention's institutions would be about three million dollars,
paid to the Law of the Sea Tribunal and the International Seabed
Authority from the State Department's Contributions to International
Organizations account. In our view, this is a bargain.
In spite of its manifest benefits to the United States, we said in
1982, when the Convention was adopted, that we could not become a party
unless its seabed mining system were reformed. Through the 1994
Agreement, we have achieved the reform of this system that we sought.
As of today, 143 parties, including most of our major allies, have
joined the Convention. It is time for us to take this opportunity to
demonstrate U.S. leadership on oceans issues by becoming a party to the
Law of the Sea Convention.
ii.
U.S. Interests in the Oceans
The United States has basic and enduring national interests in the
oceans. As the world's preeminent naval power, the United States has
strong national security interests in the ability to freely and rapidly
navigate and overfly the oceans. These are essential preconditions for
projecting military power that must be able to react rapidly to
emerging threats.
Ensuring the free and secure flow of commercial navigation is
likewise a basic concern for the United States as a major trading
power, whose economic growth and employment are inextricably linked
with a robust and growing export sector.
At the same time, the United States, with the longest coastlines,
the largest exclusive economic zone, and one of the largest continental
shelves of any nation in the world, has basic resource and
environmental interests in the oceans. Inshore and coastal waters
generate vital economic activities--fisheries, offshore mineral
development, ports and transportation facilities, and, increasingly,
recreation and tourism. The health and well-being of coastal
populations--and the majority of Americans do live in coastal areas--
are intimately linked to the quality of the coastal marine environment.
Understanding the oceans is one of the frontiers of human
scientific inquiry. The United States is a leader in the conduct of
marine scientific research and ocean observation. Further, marine data
collection is essential for understanding and addressing problems
associated with the use and protection of the marine environment,
including marine pollution, conservation of fish and other marine
living species, and forecasting of weather and climate variability.
Pursuit of our oceans objectives requires careful and often
difficult balancing of interests. As a coastal nation, for example, we
naturally are concerned about control over the waters off our shores.
Just as often, as a major maritime power, we worry about efforts on the
part of others to limit freedom of navigation.
Moreover, traditional perceptions of the inexhaustibility of marine
resources and of the capacity of the oceans to neutralize wastes have
changed, as marine species have been progressively depleted by
harvesting and their habitats damaged or threatened by pollution and a
variety of human activities. Maintaining the health and productive
capacity of the oceans while seeking to meet the economic aspirations
of growing populations also requires difficult choices.
Striking these balances must also be viewed in the international
context. Living resources migrate across the jurisdictional lines that
human beings draw on a map. Marine ecosystems and ocean currents
transport pollutants and otherwise affect environmental interests
extending across maritime boundaries and jurisdictional limits.
National security and commercial interests are also international in
scope. Achievement of ocean policy objectives thus requires
international cooperation at the bilateral, regional, and global
levels.
The United States has consistently taken the view that the full
range of these interests is best protected through a widely accepted
international framework governing uses of the sea. Since the late
1960s, the basic U.S. strategy has been to conclude a comprehensive
treaty on the law of the sea that will be generally respected. Each
succeeding U.S. Administration has recognized this goal as the
cornerstone of U.S. oceans policy. Following adoption of the Convention
in 1982, it has been the policy of the United States to act in a manner
consistent with its provisions relating to traditional uses of the
oceans and to encourage other countries to do likewise.
Notwithstanding the numerous beneficial provisions of the
Convention, the United States decided not to sign the Convention in
1982 because of flaws in the deep seabed mining regime. As Mr. Taft
will discuss, the 1994 Agreement before you overcomes these flaws and
meets the objections the United States and other industrialized
countries have expressed. It is time for the United States to become a
party to the Convention, because of the substantive benefits to the
United States; because U.S. adherence will promote the stability of the
legal regime for the oceans, which is vital to U.S. national security;
and because U.S. accession will demonstrate to the international
community that, when it modifies a regime to address our concerns, we
will join that regime.
Let me note in closing that the U.S. Commission on Oceans Policy--a
Commission that Congress established to make recommendations for a
coordinated and comprehensive national ocean policy--has unanimously
recommended that the United States immediately accede to UNCLOS. As the
Commission's resolution says: ``Time is of the essence if the United
States is to maintain its leadership role in ocean and coastal
activities. Critical national interests are at stake and the United
States can only be a full participant in upcoming Convention activities
if the country proceeds with accession expeditiously.'' Becoming a
party to the Convention, as modified by the 1994 Agreement, represents
the highest priority of United States international oceans policy--a
bipartisan priority--and to this end I urge rapid and favorable action
on these treaties by the Senate.
I will of course be happy to answer any questions you might have,
but at this time I would ask my colleague, Legal Adviser Will Taft, to
provide you with a detailed description of the Convention and the
Agreement. He will also note some of the legal issues arising from U.S.
accession to the Convention and Agreement.
Thank you very much.
The Chairman. Well, we thank you for your testimony,
Secretary Turner, and we look forward to Secretary Taft.
Let me mention that the full statements you prepared for
the hearing will all be made a part of the record, and you need
not ask for permission. It is granted. And you may proceed to
either summarize them or present the full statements. We have
not imposed arbitrary time limits because we really want to
hear from you and to gain the insights that you have today.
Thank you again, Secretary Turner. It is a pleasure, as always,
to have you Secretary Taft.
STATEMENT OF HON. WILLIAM H. TAFT, IV, LEGAL ADVISER,
DEPARTMENT OF STATE, WASHINGTON, DC
Mr. Taft. Thank you, Mr. Chairman. It is a pleasure for me
to appear before the committee and to join with Secretary
Turner in representing the State Department and the
administration. Secretary Turner has given you an overview of
the important reasons for the United States to become a party
and I will provide some additional detail on the convention and
the 1994 agreement. I do have a longer statement which I
appreciate your putting in the record, and I will try to
summarize it here.
The Chairman. Thank you.
Mr. Taft. The Law of the Sea Convention establishes
international consensus on the extent of jurisdiction that
States may exercise off their coasts and allocates rights and
duties among States in all marine areas. It provides for a
territorial sea of a maximum breadth of 12 nautical miles and a
contiguous zone of up to 24 nautical miles from coastal
baselines. It also gives the coastal State sovereign rights for
the purpose of exploring and exploiting, conserving and
managing natural resources, whether living or nonliving, in an
exclusive economic zone, which we naturally in government have
called now the EEZ, that may extend to 200 nautical miles from
the coast. In addition, the convention accords the coastal
State sovereign rights over the Continental Shelf both within
and beyond the EEZ to the extent of the geological margin.
The convention specifically preserves and elaborates the
rights of military and commercial navigation and overflight in
areas under coastal State jurisdiction and on the high seas
beyond. It guarantees passage for all ships and aircraft
through, under, and over straits used for international
navigation and archipelagos. It guarantees the high seas
freedoms of navigation, overflight, and the laying and
maintenance of submarine cables and pipelines consistent with
the other provisions of the convention.
The convention imposes on coastal States a duty to conserve
living marine resources in their EEZ's and also imposes
obligations on all States to cooperate in the conservation of
fisheries populations on the high seas and of so-called
straddling stocks.
With respect to nonliving natural resources, the convention
recognizes the coastal State's sovereign rights over the
exploration and development of mineral resources, including oil
and gas, which are found in the seabed and the subsoil of the
continental shelf. It lays down specific criteria and
procedures for determining the outer limit of the shelf. In the
Arctic, our shelf could run as far as 600 miles to the north of
our coast.
For the nonliving resources of the seabed beyond the limits
of national jurisdiction, the convention establishes an
international regime to govern exploration and exploitation. It
defines the general conditions for access to deep seabed
minerals and establishes an international organization, which
is the International Seabed Authority, to oversee such
development. The 1982 convention's provisions on deep seabed
mining, as will be discussed shortly, have been fundamentally
amended by the 1994 agreement. The United States did a lot of
work to get that done.
The convention sets forth a comprehensive legal framework
and basic obligations for protecting marine environment from
all sources of pollution. This framework also allocates
regulatory and enforcement competence to balance the interests
of coastal States in protection of the marine environment and
its natural resources with the rights and freedoms of
navigation of all States.
The convention establishes a dispute settlement system to
promote compliance with its provisions through the peaceful
settlement of disputes. These procedures are flexible,
providing options as to the appropriate means and forums for
resolution of disputes. They are also comprehensive in
subjecting the bulk of the convention's provisions to
enforcement through mechanisms that are binding under
international law. Importantly, the system also provides
parties with means of excluding matters of vital national
concern from the dispute settlement mechanisms. A State is able
to choose one or more means for the settlement of disputes
under the convention, and the administration recommends that
the United States elect arbitration under Annex VII and special
arbitration under Annex VIII of the convention as its means
where appropriate.
Subject to limited exceptions, the convention excludes from
dispute settlement mechanisms any disputes relating to the
sovereign rights of coastal States with respect to the living
resources in their EEZ's, the fish principally. It also permits
a State to opt out of dispute settlement procedures with
respect to one or more categories of disputes. The
administration recommends that the United States elect to
exclude all three of these categories that you can opt out of
from dispute settlement mechanisms.
I would like to discuss a particularly important issue that
arises with respect to the category of disputes concerning
military activities. This exception has long been of particular
importance to the United States. The U.S. negotiators sought
and achieved language reflecting a very broad exception and we
have consistently viewed this exception as a key element of the
dispute settlement package, carefully balancing
comprehensiveness with the need to protect our vital national
interests.
Over the past year, we reexamined these provisions to
ensure that they continue to meet U.S. national security needs.
We considered whether the United States declaration on dispute
settlement should highlight this exception, given its
importance and the possibility, however remote it might be,
that another State might seek dispute settlement concerning a
U.S. military activity, notwithstanding our declaration that
would except such disputes from dispute settlement. We have
concluded that each State party has the exclusive right,
including of course the United States, to determine which of
its activities are military and that such determination is not
subject to review, and we recommend that the U.S. declaration
invoking this exception should state our understanding of its
operation.
As I noted earlier, the United States decided not to sign
the convention in 1982 because of serious defects in the regime
it would have established for managing the development of
seabed mineral resources beyond national deep seabed mining.
While the other parts of the convention were judged to advance
basic U.S. oceans policy interests, the United States and other
industrialized countries felt the part XI regime needed reform
before they would consider becoming party to the convention.
As a result of international political and economic changes
of the late 1980s and early 1990s, other countries recognized
that the collectivist approach of part XI required basic
change. Informal negotiations were launched in 1990 during the
first Bush administration, and an agreement was adopted in July
1994. That agreement, signed by the United States that same
year, contains legally binding changes to part XI. It is to be
applied and interpreted together with the convention as a
single instrument.
These changes overcome each one of the U.S. objections to
the original part XI and meet our goal of guaranteed access by
the U.S. industry to deep seabed minerals under reasonable
terms and conditions. All other major industrialized nations
have now signed the agreement and most have become party to the
convention and the agreement as a package. As of today, 115
States and the European Community have consented to be bound by
the 1994 agreement.
I would like to close my testimony just by outlining some
of the distinct advantages of joining the convention over
maintaining the status quo situation. You have mentioned some
of these this morning yourself, Mr. Chairman, and I know they
were well described by Admiral Watkins and some of the other
witnesses that you had last week, but I think it is worth
repeating on behalf of the administration.
U.S. accession would substantially enhance the
authoritative force of the convention, likely inspire other
States to join, and promote its provisions as the governing
rules of international law relating to the oceans.
The United States would be in a much stronger position
invoking a treaty's provisions to which it is a party, for
instance in a bilateral disagreement where the other country
does not understand or accept them.
While we have been able to rely on diplomatic and
operational challenges to resist excessive maritime claims, it
would be more desirable to establish universal norms of
behavior and have available additional methods of resolving
conflicts.
The convention continues to be implemented in various
forums, both within and outside the convention. The United
States as a party would be in a stronger position defending its
military interests and other interests in these forums if it
were to join.
Becoming a party to the convention would permit the United
States also to nominate members for election to both the Law of
the Sea Tribunal and the continental shelf Commission. Having
U.S. members on those bodies would help ensure that the
convention is being interpreted and applied in a manner that is
consistent with U.S. interests.
And finally, becoming a party to the convention would
strengthen our ability to deflect potential proposals that
would be inconsistent with U.S. interests, including especially
with our interests in freedom of navigation.
Beyond these affirmative reasons for joining the
convention, there are down-side risks if we further delay U.S.
accession. U.S. mobility and access have been preserved over
the past 20 years in the oceans largely due to the convention's
stable, widely accepted legal framework, but it would be risky
to assume that it is possible to preserve ad infinitum the
stable situation that the United States currently enjoys on the
basis just of customary international law. Customary
international law can be changed by the practice of States over
time and therefore does not offer the future stability that
comes with being a party to the convention.
I think, Mr. Chairman, that Jack McNeil who was the
Assistant General Counsel of the Pentagon some years ago--and I
worked with him there--put it well in his testimony to the
committee some years ago when he said that basically what
conduct that may be a violation, you are in a much stronger
position condemning that conduct than waiting and seeing it
actually turn into State practice over time, and we do not be
in that position.
Because the global context for the convention is
continually changing, we need to ensure that it continues to
serve U.S. interests over time. After accession, we will
conduct biennial reviews of implementation and we will identify
any changes that may be required. After 10 years, the executive
branch proposes to conduct a more comprehensive evaluation of
the operation of the convention, and we would intend that the
results of these reviews, the biennial ones and the decennial
one, be shared with the Senate.
In addition, I would like to note that the convention
includes simplified procedures for the adoption and entry into
force of certain convention amendments and implementation and
enforcement measures that do raise potential constitutional
issues. We intend to sort these and other legal and policy
issues out with our colleagues in the administration,
particularly in the Department of Justice, and also with this
committee, and we are confident that they can be satisfactorily
resolved.
Mr. Chairman, becoming a party to the convention represents
a highest priority of the United States international oceans
policy, a bipartisan priority, and to this end, we recommend
that the Senate give its advice and consent to accession to the
convention and to the ratification of the 1994 agreement. Thank
you, Mr. Chairman.
[The prepared statement of Mr. Taft follows:]
Prepared Statement of Hon. William H. Taft, IV, Legal Adviser,
Department of State
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to testify on the 1982 United Nations
Convention on the Law of the Sea (``the Convention'') and the 1994
Agreement relating to the Implementation of Part XI of the United
Nations Convention on the Law of the Sea of 10 December 1982 (``the
1994 Agreement''). My colleague, Assistant Secretary John Turner, has
given you an overview of the important reasons for the United States to
become a party to this Convention. Please allow me to provide
additional detail on the Convention and the Agreement.
i.
The Convention
The Convention sets forth a comprehensive framework governing uses
of the oceans. It was adopted by the Third United Nations Conference on
the Law of the Sea, which met between 1973 and 1982 to adopt a treaty
regulating all matters relating to the law of the sea.
The Convention establishes international consensus on the extent
ofjurisdiction that States may exercise off their coasts and allocates
rights and duties among States in all marine areas. It provides for a
territorial sea of a maximum breadth of 12 nautical miles, within which
the coastal State may generally exercise plenary authority as a
function of its sovereignty. The Convention also establishes a
contiguous zone of up to 24 nautical miles from coastal baselines, in
which the coastal State may exercise limited control necessary to
prevent or punish infringements of its customs, fiscal, immigration,
and sanitary laws and regulations that occur within its territory or
territorial sea. It also gives the coastal State sovereign rights for
the purpose of exploring and exploiting, conserving and managing
natural resources, whether living (e.g., fisheries) or non-living
(e.g., oil and gas), in an exclusive economic zone (EEZ) that may
extend to 200 nautical miles from the coast. In addition, the
Convention accords the coastal State sovereign rights over the
continental shelf both within and beyond the EEZ where the geological
margin so extends.
The Convention carefully balances the interests of States in
controlling activities off their own coasts with those of all States in
protecting the freedom to use ocean spaces without undue interference.
It specifically preserves and elaborates the rights of military and
commercial navigation and overflight in areas under coastal State
jurisdiction and on the high seas beyond. It protects the right of
passage for all ships and aircraft through, under, and over straits
used for international navigation and archipelagos. It protects the
high seas freedoms of navigation, overflight, and the laying and
maintenance of submarine cables and pipelines, as well as other
internationally lawful uses of the sea related to those freedoms,
consistent with the other provisions of the Convention.
In recognizing the sovereign rights and management authority of
coastal States over living resources within their EEZs, the Convention
brings most fisheries under the jurisdiction of coastal States. (Some
90 percent of living marine resources are harvested within 200 nautical
miles of the coast.) The Convention imposes on coastal States a duty to
conserve these resources and also imposes obligations upon all States
to cooperate in the conservation of fisheries populations on the high
seas and of populations that are found both on the high seas and within
the EEZ (highly migratory stocks, such as tuna, as well as ``straddling
stocks''). In addition, it contains specific measures for the
conservation of anadromous species, such as salmon, and for marine
mammals, such as whales. These provisions of the Convention give the
United States the right to regulate fisheries in the largest EEZ in the
world, an area significantly greater than U.S. land territory, which
contains some of the most resource-rich waters on the planet.
With respect to non-living natural resources, the Convention
recognizes the coastal State's sovereign rights over the exploration
and development of mineral resources, including oil and gas, found in
the seabed and subsoil of the continental shelf, out to 200 nautical
miles and beyond, to the outer edge of the geological continental
margin. It lays down specific criteria and procedures for determining
the outer limit of the margin. The United States has large areas of
continental shelf seaward of 200 nautical miles in the Atlantic Ocean,
the Gulf of Mexico, and the Arctic Ocean north of Alaska. In the
Arctic, our shelf could run as far as 600 miles to the north.
For the non-living resources of the seabed beyond the limits of
national jurisdiction (i.e., beyond the EEZ or continental margin,
whichever is farther seaward), the Convention establishes an
international regime to govern exploration and exploitation of such
resources. It defines the general conditions for access to deep seabed
minerals by commercial entities and provides for the establishment of
an international organization, the International Seabed Authority, to
oversee such development. The 1982 Convention's provisions on deep
seabed mining, as will be discussed shortly, have been fundamentally
amended by the 1994 Agreement.
The Convention sets forth a comprehensive legal framework and basic
obligations for protecting the marine environment from all sources of
pollution: from vessels, from dumping, from seabed activities, and from
land-based activities. This framework also allocates regulatory and
enforcement competence to balance the interests of coastal States in
protection of the marine environment and its natural resources with the
rights and freedoms of navigation.
The essential role of marine scientific research in understanding
and managing the oceans is also secured. The Convention affirms the
right of all States to conduct marine scientific research and sets
forth obligations to promote and cooperate in such research. It
confirms the right of coastal States to require consent for such
research undertaken in marine areas under their jurisdiction. These
rights are balanced by specific criteria to ensure that coastal States
exercise the consent authority in a predictable and reasonable fashion
to promote maximum access for research activities. More U.S. scientists
conduct marine scientific research in foreign waters than scientists
from almost all other countries combined.
The Convention establishes a dispute settlement system to promote
compliance with its provisions and the peaceful settlement of disputes.
These procedures are flexible, providing options as to the appropriate
means and forums for resolution of disputes. They are also
comprehensive, in subjecting the bulk of the Convention's provisions to
enforcement through mechanisms that are binding under international
law. Importantly, the system also provides Parties with means of
excluding matters of vital national concern from the dispute settlement
mechanisms (e.g., disputes concerning maritime boundaries, military
activities, and EEZ fisheries management). A State is able to choose,
by written declaration, one or more means for the settlement of
disputes under the Convention. The Administration recommends that the
United States elect arbitration under Annex VII and special arbitration
under Annex VIII.
Subject to limited exceptions, the Convention excludes from dispute
settlement mechanisms disputes relating to the sovereign rights of
coastal States with respect to the living resources in their EEZs. In
addition, the Convention permits a State, through a declaration, to opt
out of dispute settlement procedures with respect to one or more
enumerated categories of disputes, namely disputes regarding maritime
boundaries between neighboring States, disputes concerning military
activities and certain law enforcement activities, and disputes in
respect of which the United Nations Security Council is exercising the
functions assigned to it by the Charter of the United Nations. The
Administration recommends that the United States elect to exclude all
three of these categories of disputes from dispute settlement
mechanisms.
I would like to discuss a particularly important issue that arises
with respect to the category of disputes concerning military
activities. The military activities exception has long been of
importance to the United States. The U.S. negotiators of the Convention
sought and achieved language reflecting a very broad exception,
successfully defeating attempts by certain other countries to narrow
its scope. The U.S. has consistently viewed this exception as a key
element of the dispute settlement package, which carefully balances
comprehensiveness with protection of vital national interests.
Over the past year, the Administration reexamined the Convention's
dispute settlement provisions to ensure that they continue to meet U.S.
national security needs. Now, more than ever, it is critical that U.S.
military activities, such as military surveys and reconnaissance
flights over EEZs, are not inappropriately subject to international
dispute resolution procedures, which could have a major impact on our
military operations and national security interests.
As part of our review of this serious issue, we considered whether
the U.S. declaration on dispute settlement should in some way
particularly highlight the military activities exception, given both
its importance and the possibility, however remote, that another State
Party might seek dispute settlement concerning a U.S. military activity
notwithstanding our declaration invoking the exception. We have
concluded that each State Party has the right to determine whether its
activities are military activities and that such determination is not
reviewable. We also concluded that it was very important to highlight
our understanding of the operation of this exception. As such, the
Administration recommends that the U.S. declare that its consent to
accession to the Convention is conditioned upon the understanding that
each Party has the exclusive right to determine which of its activities
are ``military activities'' and that such determination is not subject
to review. We will provide the Committee with language for the dispute
settlement declaration.
The achievement of a widely accepted and comprehensive law of the
sea convention--to which the United States can become a party--has been
a consistent objective of successive U.S. administrations for the past
thirty years. As I noted before, the United States decided not to sign
the Convention upon its adoption in 1982 because of serious defects in
the regime it would have established for managing the development of
seabed mineral resources beyond national jurisdiction. While the other
parts of the Convention were judged to advance basic U.S. ocean policy
interests, the United States and other industrialized countries
determined the deep seabed regime of Part XI to be inadequate and in
need of reform before they would ever consider becoming party to the
Convention.
The 1994 Agreement
As a result of the important international political and economic
changes of the late 1980s and early 1990s--including the end of the
Cold War and growing reliance on free market principles--widespread
recognition emerged, not limited to industrialized nations, that the
collectivist approach of the seabed mining regime of the Convention
required basic change. Thus, informal negotiations were launched in
1990 during the first Bush Administration, under the auspices of the
United Nations Secretary-General. An agreement was adopted in July
1994.
The Agreement, signed by the United States on July 28, 1994,
contains legally binding changes to that part of the LOS Convention
dealing with mining of the deep seabed beyond the limits of national
jurisdiction (Part XI). It is to be applied and interpreted together
with the Convention as a single instrument.
The legally binding changes set forth in the 1994 Agreement
overcome each one of the objections of the United States to Part XI of
the Convention and meet our goal of guaranteed access by the U.S.
industry to deep seabed minerals on the basis of reasonable terms and
conditions. All other major industrialized nations have now signed the
Agreement and most have become party to the Convention and the
Agreement as a package.
The Agreement overhauls the decision-making procedures of Part XI
to accord the United States, and others with major economic interests
at stake, decisive influence over future decisions on possible deep
seabed mining. The Agreement guarantees a seat for the United States on
the critical decision-making body and requires financial decisions to
be based on a consensus of major contributors.
The Agreement restructures the deep seabed mining regime along free
market principles. It scales back the structure of the organization to
administer the mining regime and links the activation and operation of
institutions to the actual development of concrete interest in seabed
mining. A future decision, which the United States and a few of its
allies could block, is required before the organization's potential
operating arm (the Enterprise) may be activated, and any activities on
its part are subject to the same Convention requirements as other
commercial enterprises. States have no obligation to finance the
Enterprise, and subsidies inconsistent with GATT/WTO are prohibited.
Equally important, the Agreement eliminates all requirements for
mandatory transfer of technology and production controls that were
contained in the original version of Part XI.
The Agreement provides for grandfathering the seabed mine site
claims established on the basis of the exploration work already
conducted by companies holding U.S. licenses on the basis of
arrangements ``similar to and no less favorable than'' the best terms
granted to previous claimants. It also strengthens the provisions
requiring consideration of the potential environmental impacts of deep
seabed mining.
The Agreement entered into force on November 16, 1998.
Status of the Convention and the Agreement
One hundred and fifty-two States signed the Convention during the
two years it was open for signature between 1982 and 1984. The
Convention entered into force on November 16, 1994, one year after the
sixtieth nation consented to be bound by it. As of today, there are 143
Parties to the Convention, including virtually all of our NATO and OECD
allies, as well as Russia and China.
The 1994 Agreement was concluded on July 28, 1994, and was signed
by 99 nations, including the United States. As of today, 115 States and
the European Community have consented to be bound by the Agreement.
ii.
I would like now to address some perceived disadvantages of U.S.
adherence to the Convention.
First, it might be argued that the United States should not join
the Convention because, as a party, we would be required to make
financial contributions to run the Convention's institutions. However,
payments to the Convention's institutions are modest. For the 2003-2004
biennial budget, the U.S. assessment for the International Seabed
Authority would be a little over $1 million. The U.S. assessment for
the International Tribunal for the Law of the Sea for 2004 would be a
little less than $2 million (24% of the total budget) and 22% of the
total for the 2005-2006 budget years. We do not anticipate the budget
for either institution to increase substantially in later years.
Second, some would argue that we should not be joining and
participating in a new bureaucracy for deep seabed mining. The
International Seabed Authority has, however, now been restructured in
ways that meet the objections raised by the United States and others.
The United States has a guaranteed seat on the 36-member Council, an
effective veto (in combination with two other consumer States) in the
Council, and an absolute veto in the Finance Committee with respect to
any decision with financial or budgetary implications. Moreover, as a
practical matter, U.S.-based companies will not be able to engage in
mining the deep seabed, without operating through another State Party,
unless we are party to the Convention.
Third, it might be argued that the United States should not join
the Convention because we would have to pay a contribution based on a
percentage of oil/gas production beyond 200 miles from shore. However,
the revenue-sharing provisions of the Convention are reasonable. The
United States has one of the broadest shelves in the world. Roughly 14%
of our shelf is beyond 200 miles, and off Alaska it extends north to
600 miles. The revenue-sharing provision was instrumental in achieving
guaranteed U.S. rights to these large areas. It is important to note
that this revenue-sharing obligation does not apply to areas within 200
nautical miles and thus does not affect current revenues produced from
the U.S. Outer Continental Shelf. Most important, this provision was
developed by the United States in close cooperation with
representatives of the U.S. oil and gas industry. The industry supports
this provision. Finally, with a guaranteed seat on the Finance
Committee of the International Seabed Authority, we would have an
absolute veto over the distribution of all revenues generated from this
revenue-sharing provision.
Finally, as to whether it is sufficient to continue to rely only on
customary international law, the distinct advantages of joining the
Convention include the following:
U.S. accession would enhance the authoritative force of the
Convention, likely inspire other States to join, and promote
its provisions as the governing rules of international law
relating to the oceans.
The United States would be in a stronger position invoking a
treaty's provisions to which it is party, for instance in a
bilateral disagreement where the other country does not
understand or accept them.
While we have been able to rely on diplomatic and
operational challenges to excessive maritime claims, it is
desirable to establish additional methods of resolving
conflict.
The Convention continues to be implemented in various
forums, both within the Convention and outside the Convention
(such as at the International Maritime Organization or IMO).
The United States would be in a stronger position defending its
military interests and other interests in these forums if it
were a party to the Convention.
Becoming a party to the Convention would permit the United
States to nominate members for both the Law of the Sea Tribunal
and the Continental Shelf Commission. Having U.S. members on
those bodies would help ensure that the Convention is being
interpreted and applied in a manner consistent with U.S.
interests.
Becoming a party to the Convention would strengthen our
ability to deflect potential proposals that would be
inconsistent with U.S. interests, including freedom of
navigation.
Beyond those affirmative reasons for joining the Convention, there
are downside risks of not acceding to the Convention. U.S. mobility and
access have been preserved and enjoyed over the past twenty years
largely due to the Convention's stable, widely accepted legal
framework. It would be risky to assume that it is possible to preserve
ad infinitum the stable situation that the United States currently
enjoys. Customary international law may be changed by the practice of
States over time and therefore does not offer the future stability that
comes with being a party to the Convention.
Having elaborated the basic elements of the Convention and
Agreement and the advantages of U.S. accession, allow me to raise two
final serious issues.
Because the global context for the Convention is rapidly and
continually changing, a way needs to be found to ensure that the
Convention continues to serve U.S. interests over time. We must ensure
that, in obtaining the stability that comes with joining the
Convention, we nonetheless retain sufficient flexibility to protect
U.S. interests. After U.S. accession, the Executive Branch will conduct
biennial reviews of how the Convention is being implemented and will
seek to identify any changes in U.S. and/or international
implementation that may be required to improve implementation and to
better adapt the Convention to changes in the global environment. After
ten years, the Executive Branch will conduct a more comprehensive
evaluation to determine whether the Convention continues to serve U.S.
interests. The results of these reviews will be shared with the Senate.
(Another option that we considered is that of a sunset provision, i.e.,
limiting the length of time that the United States is a party to the
Convention, which has disadvantages as well as advantages.) Needless to
say, the United States could, of course, withdraw from the Convention
if U.S. interests were seriously threatened.
In addition, I would like to note that the Convention includes
simplified procedures for the adoption and entry into force of certain
Convention amendments and implementation and enforcement measures that
raise potential constitutional issues. We intend to sort these and
other legal and policy issues out with the Senate, confident that they
can be satisfactorily resolved.
Let me join with Assistant Secretary Turner in underscoring that
becoming a party to the Convention, as modified by the 1994 Agreement,
represents the highest priority of United States international oceans
policy--a bipartisan priority--and to this end the Administration
recommends that the Senate give its advice and consent to accession to
the Convention and ratification of the Agreement. Thank you very much.
The Chairman. Well, we thank you very much for your
testimony.
The Chair would like to call now upon the Department of
Defense Deputy Assistant Secretary, Mark Esper. Mr. Esper.
STATEMENT OF MARK T. ESPER, DEPUTY ASSISTANT SECRETARY FOR
NEGOTIATIONS POLICY, DEPARTMENT OF DEFENSE, THE PENTAGON,
WASHINGTON, DC
Mr. Esper. Thank you, Mr. Chairman, and good morning. Thank
you for the opportunity to testify today in support of the
United Nations Convention on the Law of the Sea.
As my colleagues have already stated, the administration
strongly supports accession to the Law of the Sea Convention.
The convention codifies customary international law and
practices that are critical to the United States Armed Forces
and provides additional benefits to the United States.
The administration has, however, identified serious issues
raised by U.S. accession to the convention that we believe can
be resolved with the Senate's assistance.
I would like to address first the benefits to the United
States that will be derived from accession to the convention
and then follow with a discussion of the administration's
concerns and proposed remedies.
The administration supports accession to the convention
because the convention supports navigational rights critical to
military operations. These rights are essential to the
formulation and implementation of our national security
strategy. Although much of what is contained in the convention
is customary international law, accession to the convention
ensures that the United States has the benefit of the stability
that comes with the codification of customary international
law. Indeed, an essential element of executing our national
security strategy is the assumption that key sea and air lines
of communication will remain open as a matter of international
legal right, not contingent upon approval by coastal and island
nations along the route or in the area of operations.
Examples of rights that exist under the convention that are
critical to military operations include: freedom of navigation
and overflight on the high seas and within the 200 nautical
mile exclusive economic zone; freedom of navigation and
overflight through key international straits; limitation of
territorial seas to 12 nautical miles; innocent passage through
foreign territorial seas without notice or permission,
regardless of armament or means of propulsion; and freedom to
conduct military surveys seaward of foreign territorial seas
without the permission of coastal States.
In short, Mr. Chairman, the Law of the Sea Convention
codifies the rights of the United States Armed Forces to
navigate freely on, under, and over the seas.
While the United States currently enjoys the benefits of
the convention as reflected in customary international law,
accession provides the United States with additional benefits.
First, U.S. accession to the convention will enhance our
ability to influence the future direction of the law in
international maritime forums, such as the International
Maritime Organization, and the various entities established
under the convention.
Second, accession will provide the United States with
another venue to try to prevent the erosion of navigational
rights and freedoms critical to the United States Armed Forces.
We can do this by seeking to prevent adverse amendments to the
convention and by using the annual meeting of States parties to
address misunderstandings and misinterpretations of the
convention. These treaty-based tools complement longstanding
United States efforts to challenge, among other things,
excessive maritime claims and illegal constraints on our
navigational freedoms through our diplomatic initiatives and
the freedom of navigation program.
Third, accession will not only provide the United States
with additional mechanisms through which it can strive to stop
the erosion of freedoms critical to the United States Armed
Forces, but it will also provide the United States another
forum to advance United States interests. For example, we
believe that as a party to the Law of the Sea Convention, the
United States will have another avenue through which to achieve
international consensus proscribing the maritime trafficking of
weapons of mass destruction, their delivery systems, and
related materials to and from States of proliferation concern
and terrorists. To be sure, we will avail ourselves of every
available option to halt the proliferation of weapons of mass
destruction on the high seas.
Finally, accession will allow the United States to
participate in the bodies established by the convention.
Specifically, it will permit the United States to participate
in the Commission on the Limits of the Continental Shelf, the
International Seabed Authority, and the International Tribunal
for the Law of the Sea.
September 11 demonstrated how rapidly the world can change.
As a result, the administration believes it is important to
ensure that as time passes, the convention continues to provide
the United States with the flexibility needed to meet national
security challenges that may arise. To achieve that objective,
the administration considered a number of options.
To begin, once in force, the administration will conduct
biennial reviews of the treaty's implementation, including the
identification of any needed changes in the convention's
implementation or in the convention itself. Such reviews will
help the United States assess whether the convention continues
to serve United States interests. As part of these reviews, the
administration will seek to identify any changes in the treaty
or its implementation that may be required to adapt the treaty
to changes in the global security situation. In addition, these
reviews will be coupled with a more comprehensive review after
10 years. The results of these reviews will be shared with the
Senate.
Reviews of this kind are not the only option for ensuring
the convention continues to serve United States interests.
Another option that we considered is that of a sunset
provision, that is, limiting the length of time that the United
States is a party to the convention, which has disadvantages as
well as advantages. And, needless to say, the United States
could, of course, withdraw from the convention if United States
interests are ever seriously threatened.
In any case, the goal is to make certain that the
convention continues to meet our national security
requirements, protects our strategic flexibility, and advances
broader United States interests in a world that is constantly
changing.
To this end, in the past year the administration undertook
a review of the Law of the Sea Convention to ensure that it
continues to meet United States needs in the current national
security environment. This dynamic environment also requires
that the convention allow for the flexibility we need to meet
U.S. national security objectives and interests over the long
term.
Specifically, the administration sought to ensure that,
given this new strategic environment, the Law of the Sea
Convention provides the United States with sufficient
operational freedom and flexibility to pursue effectively U.S.
goals in the global war on terrorism and our efforts in concert
with other nations to halt the proliferation of weapons of mass
destruction. That review did not reveal particular problems
affecting current U.S. operations.
Our review also focused on the convention's dispute
settlement provisions which permit a party to exclude from
dispute settlement the category of ``disputes concerning
military activities.'' This exception is of vital importance to
the United States. That said, our review did identify one area
of serious concern for United States military activities.
As you know, the convention establishes a mandatory dispute
resolution scheme. Pursuant to part XV of the convention, an
arbitral tribunal may be constituted to settle disputes that
arise with respect to the interpretation and application of the
convention. The convention authorizes State parties to the
convention, through a declaration, to opt out of dispute
settlement procedures with respect to one or more enumerated
categories of disputes, namely disputes regarding maritime
boundaries between neighboring States, disputes concerning
military activities and certain law enforcement activities, and
disputes in respect of which the U.N. Security Council is
exercising the functions assigned to it under the U.N. Charter.
Through the military activities exception, the convention
recognizes that such activities involve vital national security
interests that are not an appropriate matter for mandatory
dispute resolution.
The military activities exception is of obvious importance
to the activities of the U.S. Armed Forces. As a result, we
have examined this issue thoroughly to make certain that a
tribunal cannot question whether U.S. activities are indeed
military for purposes of that exception. Allow me to offer an
example to illustrate the administration's concern.
It is possible to imagine a scenario wherein another State
party calls upon a tribunal to decide whether or not our
military surveys in that country's EEZ or reconnaissance
aircraft flying in the airspace above that country's EEZ, both
of which are military activities of paramount importance, are
consistent with the convention. In this scenario, if a tribunal
were permitted to interfere with such military activities, this
would have a major impact on our military operations and U.S.
national security.
In this light, the administration closely examined the
convention, its negotiating history, and the practices of the
tribunals constituted under the convention. Based on its
examination, the administration believes that it is clear that
whether an activity is military is for each State party to
determine for itself. Indeed, having the ability to determine
what is a military activity involves vital national security
interests that are critical to our ability to defend the
Nation, protect our forces overseas, safeguard our interests
abroad, and assist our friends and allies in times of need.
The administration thus recommends that the United States
submit a declaration electing to exclude all three of these
categories of disputes from binding dispute settlement. With
respect to the particular category of disputes concerning
military activities, the administration further recommends that
the U.S. declaration make clear that its consent to accession
to the convention is conditioned upon the understanding that
each party has the exclusive right to determine which of its
activities are military activities and that such determinations
are not subject to review. We will provide the committee with
language on this point.
Additionally, I would like to note that the convention
includes certain simplified procedures for the adoption and the
entry into force of amendments and implementation and
enforcement measures that raise potential constitutional
issues. We intend to sort these and other legal and policy
issues out with the Senate, confident that they can be
satisfactorily resolved.
Mr. Chairman, let me conclude where I began by stating the
administration's strong support for U.S. accession to the Law
of the Sea Convention. The convention codifies customary
international law that is critical to the United States Armed
Forces. Accession will provide the United States with
additional benefits and ways to safeguard the rights the
convention codifies.
I would note that in addition to the declarations and
provisions cited above, there are other declarations and issues
that the administration is considering for inclusion in the
resolution of ratification. That said, while the administration
has identified problems with the convention, we believe those
issues can be resolved by working in close partnership with the
Senate.
In closing, the administration is confident that U.S.
accession to the Law of the Sea Convention will benefit the
United States and that accession with the right declarations
supports the ability of the United States Armed Forces to
protect and advance our national security interests.
Mr. Chairman, thank you again for the opportunity to appear
before the committee this morning. The administration looks
forward to working with the committee to secure the Senate's
advice and consent, and I am happy to respond to any questions
you may have. Thank you.
[The prepared statement of Mr. Esper follows:]
Prepared Statement of Mark T. Esper, Deputy Assistant Secretary of
Defense for Negotiations Policy, Department of Defense, the Pentagon
Chairman Lugar, Senator Biden, Members of the Committee, good
morning, and thank you for the opportunity to testify today in support
of the United Nations Convention on the Law of the Sea.
Let me begin by stating that the Administration strongly supports
accession to the Law of the Sea Convention. The Convention codifies
customary international law and practices that are critical to the
United States Armed Forces, and provides additional benefits to the
United States.
The Administration has, however, identified serious issues raised
by U.S. accession to the Convention that we believe can be resolved
with the Senate's assistance.
I would like to address first the benefits to the United States
that will be derived from accession to the Convention, and then follow
with a discussion of the Administration's concerns and proposed
remedies.
The Administration supports accession to the Convention because the
Convention supports navigational rights critical to military
operations. These rights are essential to the formulation and
implementation of our national security strategy. Although much of what
is contained in the Convention is customary international law,
accession to the Convention ensures that the United States has the
benefit of the stability that comes with the codification of customary
international law. Indeed, an essential element of executing our
national security strategy is the assumption that key sea and air lines
of communication will remain open as a matter of international legal
right--not contingent upon approval by coastal and island nations along
the route or in the area of operations.
Examples of rights that exist under the Convention that are
critical to military operations include:
Freedom of navigation and overflight on the high seas and
within the 200 NM Exclusive Economic Zone (EEZ);
Freedom of navigation and overflight through key
international straits (such as Gibraltar, Hormuz, Malacca) and
archipelagoes (such as Indonesia and the Philippines);
Limitation of territorial seas to 12 NM and limitations on
the jurisdiction of coastal states within their EEZs and
beyond;
Innocent passage through foreign territorial seas without
notice or permission, regardless of armament or means of
propulsion; and
Freedom to conduct military surveys seaward of foreign
territorial seas without the permission of coastal states.
In short, the Law of the Sea Convention codifies the rights of the
U.S. Armed Forces to navigate freely on, under, and over the seas.
While the United States currently enjoys the benefits of the
Convention as reflected in customary international law, accession
provides the United States with additional benefits.
First, U.S. accession to the Convention will enhance our ability to
influence the future direction of the law in international maritime
forums, such as the International Maritime Organization, and the
various entities established under the Convention.
Second, accession will provide the United States with another venue
to try to prevent the erosion of navigational rights and freedoms
critical to the U.S. Armed Forces. We can do this by seeking to prevent
adverse amendments to the Convention, and by using the annual meeting
of States Parties to address misunderstandings or misinterpretations of
the Convention. These treaty-based tools complement longstanding U.S.
efforts to challenge, among other things, excessive maritime claims and
illegal constraints on our navigational freedoms, through our
diplomatic initiatives and the freedom of navigation program.
Third, accession will not only provide the United States with
additional mechanisms through which it can strive to stop the erosion
of freedoms critical to the U.S. Armed Forces, but it will also provide
the United States another forum to advance U.S. interests. For example,
we believe that as a party to the Law of the Sea Convention, the United
States will have another avenue through which to achieve international
consensus proscribing the maritime trafficking of weapons of mass
destruction, their delivery systems, and related materials to and from
states of concern and terrorists. To be sure, we will avail ourselves
of every available option to halt the proliferation of weapons of mass
destruction on the high seas.
Finally, accession will allow the United States to participate in
the bodies established by the Convention. Specifically, it will permit
the United States to participate in the Commission on the Limits of the
Continental Shelf, the International Seabed Authority, and the
International Tribunal for the Law of the Sea. These bodies could play
an important role in influencing future law of the sea developments.
September 11 demonstrated how rapidly the world can change. As a
result, the Administration believes it is important to ensure that, as
time passes, the Convention continues to provide the United States with
the flexibility needed to meet national security challenges that may
arise. To achieve that objective, the Administration considered a
number of options.
To begin, once in force, the Administration will conduct biennial
reviews of the treaty's implementation, including the identification of
any needed changes in the Convention's implementation or in the
Convention itself. Such reviews will help the United States assess
whether the Convention continues to serve U.S. interests. As part of
these reviews, the Administration will seek to identify any changes in
the treaty or its implementation that may be required to adapt the
treaty to changes in the global security situation. In addition, these
biennial reviews will be coupled with a more comprehensive review after
ten years. The results of these reviews will be shared with the Senate.
Reviews of this kind are not the only option for ensuring the
Convention continues to serve U.S. interests. Another option that we
considered is that of a sunset provision, that is, limiting the length
of time that the United States is a party to the Convention, which has
disadvantages as well as advantages. And, needless to say, the United
States could, of course, withdraw from the Convention if U.S. interests
are ever seriously threatened.
In any case, the goal is to make certain that the Convention
continues to meet our national security requirements, protects our
strategic flexibility, and advances broader U.S. interests in a world
that is constantly changing.
To this end, in the past year the Administration undertook a review
of the Law of the Sea Convention to ensure that it continues to meet
U.S. needs in the current national security environment. This dynamic
environment also requires that the Convention allow for the flexibility
we need to meet U.S. national security objectives and interests over
the long term.
Specifically, the Administration sought to ensure that, given this
new strategic environment, the Law of the Sea Convention provides the
United States with sufficient operational freedom and flexibility to
pursue effectively U.S. goals in the global war on terrorism and our
efforts in concert with other nations to halt the proliferation of
weapons of mass destruction. That review did not reveal particular
problems affecting current U.S. operations.
Our review also focused on the Convention's dispute settlement
provisions, which permit a Party to exclude from dispute settlement the
category of ``disputes concerning military activities.'' This exception
is of vital importance to the United States. That said, our review, did
identify one area of serious concern for U.S. military activities.
As you know, the Convention establishes a mandatory dispute
resolution scheme. Pursuant to Part XV of the Convention, an arbitral
tribunal may be constituted to settle disputes that arise with respect
to the interpretation and application of the Convention. The Convention
authorizes State Parties to the Convention, through a declaration, to
opt out of dispute settlement procedures with respect to one or more
enumerated categories of disputes, namely disputes regarding maritime
boundaries between neighboring states, disputes concerning military
activities and certain law enforcement activities, and disputes in
respect of which the U.N. Security Council is exercising the functions
assigned to it under the U.N. Charter. Through the military activities
exception, the Convention recognizes that such activities involve vital
national security interests that are not an appropriate matter for
mandatory dispute resolution.
The military activities exception is of obvious importance to the
activities of the U.S. Armed Forces. As a result, we have examined this
issue thoroughly to make certain that a tribunal cannot question
whether U.S. activities are indeed ``military'' for purposes of that
exception. Allow me to offer an example to illustrate the
Administration's concern. It is possible to imagine a scenario wherein
another State Party calls upon a tribunal to decide whether or not our
military surveys in that country's EEZ or reconnaissance aircraft
flying in the airspace above that country's EEZ--both of which are
military activities of paramount importance--are consistent with the
Convention.
In this scenario, if a tribunal were permitted to interfere with
such military activities, this would have a major impact on our
military operations and U.S. national security.
In this light, the Administration closely examined the Convention,
its negotiating history, and the practices of the tribunals constituted
under the Convention. Based on this examination, the Administration
believes that it is clear that whether an activity is ``military'' is
for each State Party to determine for itself. Indeed, having the
ability to determine what is a ``military activity'' involves vital
national security interests that are critical to our ability to defend
the Nation, protect our forces overseas, safeguard our interests
abroad, and assist our friends and allies in times of need.
The Administration thus recommends that the United States submit a
declaration electing to exclude all three of these categories of
disputes from binding dispute settlement. With respect to the
particular category of disputes concerning military activities, the
Administration further recommends that the U.S. declaration make clear
that its consent to accession to the Convention is conditioned upon the
understanding that each Party has the exclusive right to determine
which of its activities are ``military activities'' and that such
determinations are not subject to review. We will provide the Committee
with language on this point.
Additionally, I would like to note that the Convention includes
certain simplified procedures for the adoption and the entry into force
of amendments and implementation and enforcement measures that raise
potential constitutional issues. We intend to sort these and other
legal and policy issues out with the Senate, confident that they can be
satisfactorily resolved.
Mr. Chairman, let me conclude where I began by stating the
Administration's strong support for U.S. accession to the Law of the
Sea Convention. The Convention codifies customary international law
that is critical to the United States Armed Forces; accession will
provide the United States with additional benefits and ways to
safeguard the rights the Convention codifies.
I would note that, in addition to the declarations and provisions
cited above, there are other declarations and issues that the
Administration is considering for inclusion in the Resolution of
Ratification. That said, while the Administration has identified
problems with the Convention, we believe those issues can be resolved
by working in close partnership with the Senate.
In closing, the Administration is confident that U.S. accession to
the Law of the Sea Convention will benefit the United States, and that
accession with the right declarations supports the ability of the U.S.
Armed Forces to protect and advance our national security interests.
Mr. Chairman, I would like to thank you again for the opportunity
to appear before the Committee this morning. The Administration looks
forward to working with the Committee to secure the Senate's advice and
consent. I am happy to respond to any questions you or other members of
the Committee may have, Mr. Chairman.
Thank you.
The Chairman. Well, thank you very much, Mr. Esper, for
that testimony. Let me mention that I appreciate in the
testimony from both the Department of State and the Department
of Defense an eagerness to work with the committee to furnish
language that may be helpful in furthering points that you have
made in your testimony.
It is a privilege now to call upon from the United States
Navy the Vice Chief of Naval Operations, Admiral Michael
Mullen. Admiral.
STATEMENT OF ADMIRAL MICHAEL G. MULLEN, VICE CHIEF OF NAVAL
OPERATIONS, JOINT CHIEFS OF STAFF, DEPARTMENT OF THE NAVY,
WASHINGTON, DC
Admiral Mullen. Good morning, sir. Mr. Chairman, I too
would like to thank you for the opportunity to testify here
today. General Myers, the Chairman of the Joint Chiefs of
Staff, has asked that I review with you the position of the
Joint Chiefs of Staff and the combatant commanders on
ratification of the Law of the Sea Convention. With your
permission, I would like to make a brief opening statement, and
as you have already stated yourself, submit my written
testimony for the record.
The Chairman. Very good.
Admiral Mullen. General Myers, the services, and the
combatant commands strongly support the United States becoming
a party to the convention, which DOD and five administrations
have consistently supported.
As a comprehensive, multilateral treaty that confirms
navigational rights and freedoms for maintaining global
mobility and forward presence and readiness, the convention
supports national security interests by codifying the right of
U.S. military vessels to navigate freely on, under, and over
the high seas or within international straits. Furthermore,
within traditional choke point areas, a normal mode of
operations is permitted, including formation steaming, use of
sensors such as radar and sonar, submerged transits, and the
launching and recovery of aircraft.
Since 1983, the Joint Chiefs and the combatant commanders
have supported the navigational provisions of the convention
because of the core belief that a comprehensive, widely
accepted, and stable legal basis for the world's oceans is
essential to U.S. national security. With the favorable changes
already made to the deep seabed regime under the U.S.
Government leadership, the minimal risks associated with
operating inside the treaty are eclipsed by the risk to remain
outside, to limit our operations, to permit excessive customary
foreign claims, and to yield our position as the international
leader, particularly in the maritime domain.
United States forces are continuously forward deployed
worldwide to deter threats to our national security and remain
in position to rapidly respond in order to protect U.S.
interests either as part of a coalition or, if necessary, to
act independently. In addition to Operations Enduring Freedom
and Iraqi Freedom, our forces are now engaged in laying the
groundwork for the implementation of the President's
Proliferation Security Initiative. This international coalition
will work together to disrupt the flow of weapons of mass
destruction, their delivery systems, and any related illicit
materials being transshipped throughout the world. Therefore,
for present and other undefined future operations, our naval
and air forces must be able to take maximum advantage of the
navigational rights reflected in the Law of the Sea Convention.
The convention also restricts and deters encroachment of
coastal States. We must be able to count on the codified
limits, such as the 12 nautical mile territorial sea, the
maximum jurisdiction of 200 nautical miles, or the right to
conduct military operations, including intelligence activities,
without permission or prior notice within a coastal State's
exclusive economic zone. And we must be able to operate with
the sovereign immunity imputed by the convention.
We believe that there are several fundamental points in
support of ratification.
First, it preserves U.S. leadership in developing and
influencing the Law of the Sea, including peaceful dispute
settlement and participation within various international
bodies.
Second, it codifies existing navigational freedoms that
support the way we operate and limits the restrictions imposed
upon us by the customary law of some coastal States.
And last, it represents the best guarantee against further
erosion of essential navigational and overflight freedoms that
place in jeopardy our global mobility and transforming defense
strategy.
It is too risky to continue relying upon written customary
international law as the primary legal basis to support U.S.
military operations. We must be a party to the convention to
claim the rights we assert. Challenges to our national security
interests make strategic mobility more important than ever to
our national security, and the oceans provide a vast and
exploitable military maneuver space. By joining the convention,
we incur the freedom to get to the fight 24 by 7 without a
permission slip.
Again, Mr. Chairman, I wish to thank you and the committee
for offering me the opportunity to appear before you today, and
I will be very happy to answer any questions you may have.
[The prepared statement of Admiral Mullen follows:]
Prepared Statement of Admiral Michael G. Mullen, U.S. Navy, Vice Chief
of Naval Operations, Joint Chiefs of Staff, Department of the Navy
Chairman Lugar, Senator Biden, Members of the Committee on Foreign
Relations, good morning. I would like to thank you for this opportunity
to testify here today. I am Admiral Mike Mullen, U.S. Navy, the Vice
Chief of Naval Operations for the Department of the Navy.
Although I am presently the Vice Chief of Naval Operations, I
previously commanded the Navy's Second Fleet and NATO's Striking Force
Atlantic, was privileged to command the George Washington Carrier
Battle Group, and was commanding officer on and served aboard a number
of cruisers, destroyers and other ships in our Fleet. The
Administration, including the Military Departments, the Joint Chiefs of
Staff and the Combatant Commanders, strongly support U.S. accession to
the Convention. Entry into force for the United States will enhance the
worldwide mobility our forces require and our traditional leadership
role in maritime matters, as well as position us better to initiate and
influence future developments in the law of sea.
The Administration has identified three areas of serious concern,
one of which could have a direct impact on U.S. military activities.
The Administration believes, however, that we can resolve these
problems by working closely with the Senate.
Military operations since September 11--from Operation Enduring
Freedom to Operation Iraqi Freedom to the Global War on Terrorism--have
dramatically increased our global military requirements. U.S. Forces
are continuously forward deployed worldwide to deter threats to our
national security and are in position to respond rapidly to protect
U.S. interests, either as part of a coalition or, if necessary, acting
independently. U.S. military strategy envisions rapid deployment and
mobility of forces overseas anytime, anywhere. A leaner, more agile
force with a smaller overseas footprint places a premium on mobility
and independent operational maneuver. Our mobility requirements have
never been greater.
Future threats will likely emerge in places and in ways that are
not yet fully clear. For these and other undefined future operational
challenges, U.S. naval and air forces must take maximum advantage of
the customary, established navigational rights that the Law of the Sea
Convention codifies. Sustaining our overseas presence, responding to
complex emergencies, prosecuting the global war on terrorism, and
conducting operations far from our shores are only possible if military
forces and military and civilian logistic supply ships and aircraft are
able to make unencumbered use of the sea and air lines of
communication. This is an enduring principle that has been in place
since the founding of our country.
In addition to Operations Enduring Freedom and Iraqi Freedom, our
ships and aircraft have been deployed overseas to intercept terrorists
in the Mediterranean Sea, the Pacific Ocean and the Arabian Sea. They
have also been deployed to the Pacific and Indian Oceans to ensure
security in vital lines of communication in Southeast Asia, as well as
to the waters off Central and South America to interdict the flow of
illicit traffic from that region. Our forces are now engaged in laying
the groundwork for implementation of the President's Proliferation
Security Initiative. The international coalition assembled as part of
the President's initiative will work together to disrupt the flow of
weapons of mass destruction, their delivery systems, and related
materials throughout the world.
The navigation and overflight freedoms we require through customary
international law are better served by being a party to the Convention
that codifies those freedoms. Being a party to the Convention is even
more important because the trend among some coastal states is toward
limiting historical navigational and overflight freedoms. Would-be
adversaries, or nations that do not support the particular missions or
activities we undertake, will be less likely to dispute our lawful use
of the sea and air lanes if we are parties to the Convention. We
support the Convention because it protects military mobility by
codifying favorable transit rights in key international straits,
archipelagic waters, and waters adjacent to coastal states where our
forces must be able to operate freely.
The Law of the Sea Convention serves some very important U.S.
military interests. Specifically, the Convention, codifies:
High seas freedoms of overflight and vessel navigation
without discriminating against military exercises, military
surveys, research and development activities, ordnance testing,
and space and telecommunications activities;
Limitation of territorial seas to 12 nm in the face of
increasing pressure by some coastal states to expand those seas
well beyond that limit, and to assert other claims that have
the practical effect of extending coastal state control over
the U.S. military's legitimate uses of those seas;
Unimpeded overflight and passage rights through critical
international straits such as the Straits of Hormuz, Gibraltar
and Malacca;
Unimpeded overflight and passage rights through archipelagic
states such as Indonesia and the Philippines under a balanced
regime of archipelagic sea lanes;
The right of innocent passage of ships through the
territorial seas of coastal states, without prior notification
or permission;
Limitation of the jurisdiction of coastal states in their
exclusive economic zones (EEZ) to legitimate resource related
concerns, while preserving high seas freedoms for other states;
The right to conduct hydrographic and military surveys on
the high seas and within foreign EEZs.
In addition to the rights that I just mentioned, the Convention
guarantees the right to conduct transits through international straits
in ``normal modes,'' which means that submarines may stay submerged and
air-capable ships may launch, recover, and operate aircraft. It further
means that ships may steam in formation. This right to conduct transit
in ``normal modes,'' which is frequently challenged, is particularly
important to our naval units because it ensures their ability to
maintain appropriate readiness and defensive postures through many of
the most important choke points in the world.
Moreover, the Convention also recognizes the right of ships to
navigate in international waters and through territorial seas without
regard to cargo or means of propulsion. Since many of the Navy's major
combatants are nuclear powered, the importance of this right cannot be
overemphasized as a component of strengthening the military's ability
to respond globally.
The right of transit passage through international straits and the
related regime of archipelagic sea lanes passage are particularly
important. More than 150 international straits are overlapped by 12 nm
territorial seas. Of these, we consider approximately a dozen to be
``strategic'' for commercial and military purposes. Among these
strategic straits are the Straits of Hormuz, Bab el Mandeb, Malacca,
Gibraltar, and Dover, plus the strategic sea lanes through the
Philippine and Indonesian archipelagoes.
These straits have been critical to U.S. operations in the past.
For example, during the raid on Libya in 1986, U.S. Air Force FB-111
fighter-bombers relied on free passage through the Strait of Gibraltar
to accomplish their mission. Also, assured access for the enormous flow
of forces and logistics to the Arabian Gulf during Operations Desert
Shield/Desert Storm in 1990 and 1991 through Bab el Mandeb and Hormuz
was a critical element of coalition success, as was again the case in
Operation Enduring Freedom and Operation Iraqi Freedom. Afterwards, the
United States used these straits continually throughout twelve years of
enforcing U.N. sanctions against Iraq. Finally, since September 11, our
forces have relied, to their advantage, upon all of these key routes in
conducting Operation Enduring Freedom and Operation Iraqi Freedom as we
prosecute the global war on terrorism.
Notwithstanding the fact that the navigational freedoms and transit
rights we currently enjoy are embodied in customary international law,
as a party to the Convention, the United States would, however, be in a
stronger leadership position to assert its rights to use the oceans for
navigation and overflight. For example, in making excessive claims,
some coastal states contend that the navigational and overflight rights
contained in the Convention are available only to those states that
also accept the responsibilities set forth in the Convention by
becoming parties to it. By becoming a party to the Convention we can
deprive those states of this argument. This is not to suggest that
countries' attempts to restrict navigation will cease once the United
States becomes a party to the Law of the Sea Convention. Coastal states
make excessive claims for a variety of reasons--because they believe
such claims to be in their national interest; because they feed
domestics politics; and, because they believe they can enforce those
claims or that other nations will, for lack of resources and
capability, acquiesce in those claims. The Administration believes,
however, that with the United States as a party, fewer states are
likely to view such claims as sustainable. As a party, our diplomatic
and operational challenges to excessive claims will carry greater
weight.
Although accession to the Convention will benefit the United
States, the Administration has some concerns. As previously mentioned,
three serious issues have been identified, one of which involves the
military activities exception to the dispute settlement provisions.
With respect to the dispute settlement provisions, the
Administration intends to exempt military activities from those
provisions. Notwithstanding our exemption, it is conceivable that a
tribunal could assert it has jurisdiction over what we believe is a
military activity, such as military surveys. If a tribunal did so, and
if it issued an adverse ruling, then such a ruling could have an impact
on operational planning and activities, and our security. The extent of
that impact will depend on the circumstances. It could be major, it
could be minor or it could have no impact whatsoever. The point is, we
cannot predict the future with certainty. We believe that whether an
activity is ``military'' is for each party to determine for itself. We
will work with the Senate to ensure that our declaration on accession
contains solid language to address this issue.
Because the global context for the Convention is rapidly and
continually changing, a way needs to be found to ensure that the
Convention continues to serve U.S. interests over time. We must ensure
that, in obtaining the stability that comes with joining the
Convention, we nonetheless retain sufficient flexibility to protect
U.S. interests. After U.S. accession, the Executive Branch will conduct
biennial reviews of how the Convention is being implemented and will
seek to identify any changes in U.S. and/or international
implementation that may be required to improve implementation and to
better adapt the Convention changes in the global environment. After
ten years, the Executive Branch will conduct a more comprehensive
evaluation to determine whether the Convention continues to serve U.S.
interests. The results of these reviews will be shared with the Senate.
Another option that the Administration considered is that of a sunset
provision, i.e., limiting the length of time that the United States is
a party to the Convention, which has disadvantages as well as
advantages. Needless to say, the United States could, of course,
withdraw from the treaty if U.S. interests were seriously threatened.
In conclusion, from an operational perspective, two fundamental
points support accession to the Convention: First, the diversity of
challenges to our national security combined with a more dynamic force
structure make strategic mobility more important than ever; Second, the
oceans are fundamental to that maneuverability and, by joining the
Convention, we further assure the freedom to get to the fight, twenty-
four hours a day and seven days a week, as necessary in the national
security interests of the United States.
Again, I wish to thank the Committee for offering me the
opportunity to appear before you here today. I am happy to answer any
questions that you may have.
The Chairman. Well, thank you very much, Admiral Mullen.
Let me just say as a personal point that I always appreciate
whenever the Vice Chief of Naval Operations or the Chief of
Naval Operations is testifying before our committee. It was my
privilege to serve Admiral Burke as a young intelligence
briefer a long time ago. He and Admiral Russell, who was then
the Vice Chief, were mentors for me. So I would appreciate the
Law of the Sea in any event.
I thank you for your strong affirmation on behalf of the
Navy and on behalf of our defense establishment.
And as a very important part of that defense effort, we
call now upon the Coast Guard Chief Counsel, Admiral John
Crowley. Admiral.
STATEMENT OF REAR ADMIRAL JOHN E. CROWLEY, JR., CHIEF COUNSEL
AND JUDGE ADVOCATE GENERAL, U.S. COAST GUARD, DEPARTMENT OF
HOMELAND SECURITY, WASHINGTON, DC
Admiral Crowley. Thank you very much, Mr. Chairman. I also
appreciate the opportunity to present the views of the Coast
Guard and the administration in support of the 1982 U.N.
Convention on the Law of the Sea, as amended.
As you know, Mr. Chairman, the U.S. Coast Guard is the law
on the sea. And as steward of the marine environment, my
comments will focus on the convention and how it will support
the Coast Guard's efforts in performing its multi-mission
responsibilities.
Following the comments that you have allowed into the
record from our formal statements and the comments of my
esteemed colleagues, I will first put my attention to the
matter of drug interdiction.
Article 108 of the convention requires all States, flag
States and coastal States, to cooperate in the suppression of
illicit traffic in narcotic drugs. Following the lead of the
U.N. Convention on the Law of the Sea, the 1988 Vienna
Convention, article 17 was complemented in its direction for
States to cooperate. And we see today 23 bilaterals that have
been formulated between the United States and other
governments, last year resulting in 135,000 pounds of cocaine
seized on high seas, 56 vessels seized, and 207 arrests.
Turning my attention to the matter of living marine
resources, we have a regime that was followed closely upon the
United States Fishery Conservation Management Act in the
development of the convention. It also established a regime
whereby agreements and a framework for the conservation of
living marine resources beyond the exclusive economic zone.
Article 55 established the basic legal regime for the EEZ in a
way consistent with the Magnuson-Stevens Act. Consistent with
article 73, which provided for enforcement measures, the Coast
Guard enforces today the Fishery Conservation Management Act
and, in fiscal year 2003, discovered one minor incursion in the
maritime boundary line of the Pacific and one, and the first in
3 years, incursion of the Hague Line in the east coast.
Finally, turning attention to the marine environmental
protection provisions in part XII, article 194 specifically
identifies measures to prevent, reduce, and control pollution
of the marine environment. The convention marks the competent
international organization, in this case, IMO, to establish
regulations in article 211. Articles 217, 218, and 220 are very
important in that they establish this framework for flag, port,
and coastal States' enforcement regimes, and this is the
architecture that the Coast Guard has been able to leverage,
together with the administration, in the IMO in protecting our
coastal interests in the marine environment.
But, Mr. Chairman, the effects of September 11, 2001 had a
profound impact on the direction of the Coast Guard and the
Nation. We see the potential for the development of a law
enforcement regime in support of maritime security that follows
in the footsteps of our experience in counter-drug
interdiction, as well as marine environmental protection, where
we have a strong reliance on the competent international
organizations. In this case, IMO stepped up to the bar last
year working with our delegation and passing provisions for the
security of ships and ports balancing the needs of flag States
and port States so that we can accomplish commerce together.
The security of our ports is No. 1. We will achieve that with
the great support in the international community by bringing
the flag State level up to our own port State equivalence.
Mr. Chairman, this concludes my summary. I again appreciate
your invitation today and I am available for any questions.
[The prepared statement of Admiral Crowley follows:]
Prepared Statement of Rear Admiral John E. Crowley, Jr., Chief Counsel
and Judge Advocate General, U.S. Coast Guard, Department of Homeland
Security
Good Morning Mr. Chairman and distinguished members of the
Committee. I am Rear Admiral John E. Crowley, Chief Counsel and Judge
Advocate General of the U.S. Coast Guard. It is a pleasure to appear
before you today to discuss the United Nations Convention on the Law of
the Sea.
I have previously served as the Assistant to the Secretary of
Transportation's Representative to the United Nations Law of the Sea
Conference in 1979-80, where I acquired an appreciation for the breadth
of Law of the Sea issues. I also have served on five cutters, twice as
commanding officer. My sea duty has encompassed all of the Coast
Guard's Deepwater missions, including service as the Chief Staff
Officer of the Joint Task Force responding to the 1994 Haitian and
Cuban mass migrations. I have more recently served as the Special
Assistant to the Secretary of Homeland Security and the interim
Director of the Homeland Security Center. These assignments allow me to
provide comments from the operator's point of view as well. Following
these remarks, I am prepared to answer any questions you may have
concerning the potential effects of this Convention on the U.S. Coast
Guard's missions.
Although the 1982 UN Convention on the Law of the Sea (LOS) entered
into force in 1994, the U.S. has continued to rely upon customary
international law as reflected in the Convention to advance our oceans
policy. While reliance upon customary international law has, in fact,
served us well for many years, becoming a party to the LOS Convention
will enhance our position in maritime affairs. The first UN effort at
codifying the Law of the Sea took place in 1958, when the first UN
Conference on the Law of the Sea concluded four separate conventions
dealing with the Law of the Sea. These four conventions represented, in
the main, codifications of customary international law at the time.
However, it must be remembered that at the time, pollution of the
world's oceans was not considered an important issue; fish stocks were
thought to be inexhaustible, and the need for maritime domain awareness
was not present. Beginning in the 1960's, the world, in general, and
the oceans, in particular, began experiencing significant change in
such areas as pollution standards and fisheries management. This led to
the Third United Nations Conference on the Law of the Sea (UNCLOS III),
which developed the 1982 UN Convention on the Law of the Sea. With 143
states party to the 1982 UN Convention on the Law of the Sea, the
Convention will play a central role in resolving such issues in the
future. It will also serve as a foundation upon which future oceans
agreements will be based. For these reasons, it is particularly
important for the United States to become a party to the Convention.
On November 16, 1994, the LOS Convention entered into force. That
event represented a milestone in the United States' efforts to achieve
a widely ratified, comprehensive law of the sea treaty that protects
and promotes a wide range of U.S. ocean interests, many of which affect
the U.S. Coast Guard. Because of our law enforcement and national
security missions, the Coast Guard has long been a proponent of
achieving a comprehensive and stable regime with respect to traditional
uses of the oceans. The Convention aids our interests by stabilizing
the trend towards expansion of national jurisdiction over coastal
waters, while furthering our efforts to protect and manage fishery
resources and to protect the marine environment. From the Coast Guard
perspective, public order of the oceans is best established and
maintained by a stable, universally accepted law of the sea treaty
reflective of U.S. national interest.
One of the bedrock underpinnings of the Convention was codification
of rights and responsibilities of states as port states, flag states
and coastal states. During the LOS Convention negotiations, the U.S.
aggressively sought both clarification and delimitation of seaward
territorial claims by coastal states in order to ensure navigational
freedoms while at the same time recognizing the U.S.'s interest as a
coastal state with sovereignty to protect its living and non-living
marine resources. The result was a limit nations could claim as a
territorial sea of no more than 12 nautical miles. Our fishery
conservation management interests, as reflected in the Magnuson-Stevens
Fishery Conservation Management Act, were instrumental in the
international development of the 200 nautical mile Exclusive Economic
Zone (EEZ). In the EEZ, all nations enjoy freedoms of navigation, while
the coastal state possesses sovereign rights to protect and exploit the
living and non-living marine resources. Following the Amoco Cadiz and
subsequent vessel oil spill incidents, marine pollution was also
addressed in the 1982 UN Convention on the Law of the Sea with
provisions that have been described as a far-reaching environmental
accord. The Convention struck the appropriate balance of competing
claims, so that all nations could engage in high seas freedoms,
including non-resource related law enforcement in other nation's EEZ
waters, and the coastal state enjoyed the right to protect its marine
environment, including damage from oil spills by vessels, fisheries
conservation and enforcement of domestic laws designed to conserve and
protect the living marine resources in their EEZ. The Convention also
recognized a port state regime adequate to ensure their interests were
protected when vessels voluntarily entered their ports or places
subject to their jurisdiction.
The Coast Guard and other U.S. military forces already rely heavily
on the elemental navigation freedoms codified in the Law of the Sea
Convention. These protections allow the use of the world's oceans to
meet changing national security requirements. The Convention limits a
nation's territorial sea to no more than 12 nautical miles, beyond
which all nations enjoy a high seas navigation regime that includes the
freedom to engage in law enforcement activities. The Convention
codifies the right to operate freely beyond a nation's territorial sea
and protects this right by limiting excessive maritime claims that
often have the effect of creating maritime safe havens for drug
traffickers and other criminals. In fiscal year 2003, the Coast Guard
maritime interdiction operations occurring on international waters
resulted in the seizure of over 135,000 pounds of cocaine, 56 vessels,
and 207 arrests. In keeping with our aggressive international crime
control strategy, most of these seizures took place on distant maritime
transit routes far from our shores. However, during hi-lateral
negotiations, several nations have, in the past, questioned our
authority to contest certain of their excessive maritime claims simply
because we have yet to ratify the treaty. Becoming a party to the
Convention will enhance our ability to conduct such interdiction
operations and to refute excessive maritime claims. Rather than only
basing our law enforcement operations on customary international law,
the United States should become a conspicuous and leading party to the
treaty that codifies these important navigational rights.
The Convention also contains provisions that enhance our ability to
interdict foreign flagged vessels off our own coasts. The Convention
codifies a coastal nation's right to establish a contiguous zone not to
exceed 24 nautical miles where it may enforce its customs, immigration,
fiscal, and sanitary laws. Adoption by the U.S. of an expanded
contiguous zone has doubled the area where we can exercise these
increased authorities. The benefits of the contiguous zone against
traffickers surreptitiously shipping their illicit products to U.S.
shores are clear.
Article 108 of the Convention requires international cooperation in
the suppression of the transport of illegal drugs. The United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, 1988 (the Vienna Convention) is a fine example of this. The
United States has been at the forefront. We have aggressively pursued
bilateral agreements with many nations that border drug transit zones
as well as States with large registries to facilitate the effective
interdiction of vessels suspected of transporting illegal drugs and the
eventual prosecution of the drug traffickers. During discussions with
these nations, we emphasize the Convention's call for cooperation and
premise each agreement on concepts codified within the Convention;
becoming a party to the Convention will improve our position during
these negotiations.
The Convention contains numerous provisions that advance the
economic interests of the United States as a coastal state. By
codifying the 200-nautical mile EEZ, the Convention confirms U.S.
exclusive jurisdiction over all the living and non-living resources in
the zone. Experts agree that the problems associated with the
management of fish stocks will continue as a contentious issue for
states that rely on fishing to feed their population. The Convention
provides a legal baseline that sanctions the actions of regional
fishing organizations to deal with such conservation issues. Indeed,
the Convention imposes responsibilities on the coastal states to manage
their fishery resources responsibly, and provides the best structural
framework for resolving conflicts between competing users. The
Convention's provisions regarding the exclusive economic zone are fully
in accord with our fisheries policies and interest. Similarly, the
Convention makes provision for a wider continental shelf. This is
important to our oil and gas interests because they need the certainty
of established continental shelf boundaries before they begin
exploration.
The Convention is also an environmental accord that provides a
comprehensive framework for the prevention, reduction, and control of
maritime pollution. The Coast Guard conducts a wide-ranging port state
control program to purge our waters of substandard ships and is
assisting other nations in doing the same. This initiative will be
enhanced through the consistent application of the Convention's broad
enforcement mechanisms. Additionally, the Convention carefully balances
the rights of coastal states to adopt certain measures to protect the
marine environment adjacent to their shores and the general right of a
flag state to set and enforce standards and requirements concerning the
operation of its vessels. Becoming a party to the Law of the Sea
Convention will strengthen the international credibility of the U.S.
and our efforts to guide the development of internationally accepted
vessel standards, thereby improving marine safety and protection of the
marine environment.
The Convention calls for international cooperation among states in
preserving the world's high seas fisheries. This provision on
cooperation supports the UN ban on high seas drift net fishing.
As the lead Federal agency for maritime security, the Coast Guard
believes that acceding to the 1982 UN Convention on the Law of the Sea
will benefit the Coast Guard in our efforts to ensure maritime homeland
security, and ensure that our maritime borders are secure, as well. In
that regard, in the Maritime Transportation Security Act, the Congress
found that, ``it is in the best interests of the United States to
implement new international instruments that establish [the IMO
International Ship and Port Facility Security Code and amend SOLAS to
include maritime security as well as safety among its provisions].''
The Convention recognizes that various UN subsidiary bodies may
serve as competent international organizations for the further
Conventional development of the law of the sea. IMO has always been the
recognized competent international organization for maritime safety and
marine environmental protection. It has now assumed a similar role in
port facility and vessel security. Acceding to the Convention will
enhance Coast Guard efforts to work in the international community
through the International Maritime Organization, the International
Labor Organization and other UN subsidiary bodies to improve our
security measures and to project our maritime domain awareness,
consistent with the Convention's balance of states' rights to the uses
of the oceans. Specifically, we are working now at IMO to build upon
the successes achieved by the United States in that body at the
December 2002 diplomatic conference. As you know, that diplomatic
conference resulted in the landmark amendments to the SOLAS Convention
for vessel and port facility security contained in Chapter XI and the
International Ship and Port Facility Security Code. We have on-going
efforts in respect of Conference Resolution 10 to enhance our maritime
domain awareness through Long Range Tracking of vessels bound for our
ports and waters. These negotiations are taking place in the context of
the overwhelming number of nations at IMO being parties to the Law of
the Sea Convention. Because of this fact, the Law of the Sea Convention
provides the framework for the discussions and agreements. Although we
have enjoyed success in the international security agreements so far,
those negotiations have not always been easy. Further progress will not
be as easy to achieve as our past successes. Frankly, the fact that the
United States is not a party to the Law of the Sea Convention, when the
overwhelming number of our international partners are parties, has
occasionally put us in a difficult negotiating position at IMO. It is
our judgment that accession to the Convention will put us in a stronger
position at the IMO than we currently enjoy.
In the view of the Department of Homeland Security and the Coast
Guard, accession to the LOS Convention helps safeguard United States
security and economic interests. The LOS Convention contains provisions
that go beyond codifying existing customary international law. The LOS
Convention contains both customary international law and the provisions
allowing for the progressive development of law. Becoming a party to
the Convention will help us preserve the significant concessions we
obtained during the negotiations of the Convention in the area of
navigational freedoms, and help us in the development of the law of the
sea as it evolves.
It is our understanding that the Administration has, however,
identified certain serious concerns regarding accession to the
Convention, but which we believe can be resolved. Those issues will be
addressed by the State Department and the Department of Defense.
Thank you for the opportunity to testify before you today. I will
be happy to answer any questions you may have.
The Chairman. Thank you very much, Admiral Crowley.
Before turning to questions, let me make a couple of
observations. I read the testimony before the hearing and have
appreciated your presentations this morning. I am pleased to
learn from the administration that there is strong support for
the Convention. I agree that ratification is strongly in our
national interest.
I have listened carefully to at least three issues of
possible concern which you have raised with respect to the
Convention. It appears that the administration will be in a
position to suggest various means of addressing these issues. I
do not believe any of the issues present an obstacle to the
Senate providing advice and consent to the convention. As I
indicated in my opening statement, I will work to have the
committee move swiftly with the Convention. I look forward to
the administration's cooperation during the process, which you
have generously offered.
Let me turn to a question that relates to the
administration's Proliferation Security Initiative, which is
designed to prevent the proliferation of weapons of mass
destruction and missile technology. I understand that the
Statement of Principles establishing that initiative provides
that actions taken under the initiative will be consistent with
national legal authorities and relevant international law and
frameworks, including the United Nations Security Council. What
impact, if any, does the Convention that we are discussing
today, the Law of the Sea, have on the ability of the United
States to carry out interdiction efforts to be undertaken
pursuant to this initiative? Perhaps, Mr. Esper, do you have a
view--or Mr. Taft?
Mr. Taft. Mr. Chairman, yes, we have actually considered
this, of course, as an important issue because the
Proliferation Security Initiative is a very high priority. The
President announced his effort to the United States' commitment
to bring this off in his speech to the United Nations just last
month. So we are pursuing that initiative.
But basically the language that you cited is that it is
consistent with the international legal framework that actually
is reflected in the provisions of the Law of the Sea
Convention. Of the parties that we are working with at the
moment on this initiative, all of them are actually parties to
the Law of the Sea Convention, except ourselves. So they will
be working with us in that framework, and it doesn't present
any difficulties for us in conforming that initiative, which
must be successful, is critically important, in any obligations
that we would be undertaking under the convention, should we
become a party to it.
The Chairman. Thank you. Is there any other comment on that
issue? Yes.
Admiral Mullen. I might comment, sir, just from the
standpoint of being in a position at sea to enforce this kind
of initiative. Certainly the strength of the Law of the Sea
Convention in terms of establishing and reinforcing and
codifying the 12-mile territorial sea, the 200-mile EEZ, the
right to transit, freedom of transit in international straits,
all of that, it seems to me, would greatly strengthen our
ability to support the objectives of this very important
initiative in the PSI sense specifically and not be restricted
when a situation would arise by a legal restriction and
particularly in those kinds of situations, as in many military
situations, where time is of the essence.
So I see them as very consistent. Clearly the uniformity of
approach, both in PSI and what we typically do in our maritime
interception operations, that consistency would be very
beneficial.
The Chairman. I thank you.
Let me ask Admiral Crowley. You have mentioned the security
of our ports. We are always concerned about that. You have
indicated an enhanced interest in that subsequent to September
11, 2001. On those issues and those of homeland security--
insofar as the Coast Guard serves as an important enforcement
agent--is it your view that the Law of the Sea Convention is
helpful or neutral? Does it make any difference? Can you flesh
out, at least from the homeland security situation, your views
on the Convention?
Admiral Crowley. Yes, Mr. Chairman, I would be pleased to
answer that question. The Coast Guard's view would be, as a
port State, we rely on our own domestic legislation and our
sovereign concerns to protect our ports and being the
preeminent element of law in ensuring port security. What the
Law of the Sea Convention and the work that we have undertaken
through the International Maritime Organization are able to
accomplish and therefore enhance our ability to provide
security within our ports is to provide this very important
framework that first appeared in the convention whereby port
States, coastal States, and flag States have their
corresponding responsibilities welded together. And together,
we are able to raise the standard for the flag States that sail
through all the ports and that in various capacities affect our
own security as the security of other ports that are part of
the international commerce are touched. And in this fashion, we
see that the framework and the regime, established first in
UNCLOS, is a good thing and we look forward to ratification of
the convention. We quite frankly see an enhancement of our
position in negotiating enhanced flag State levels of
comportment and other port States' levels of comportment with
our standing as a member of the convention.
The Chairman. I thank you, Admiral.
Mr. Esper, as I listened to your testimony, you mentioned
that, at one point at least, the administration considered a
sunset provision. Now, do I understand it correctly that the
administration has rejected this option, or do you have any
further comment on that particular portion of your testimony?
Mr. Esper. As you stated, Mr. Chairman, the issue of the
sunset provision was considered. Clearly it has advantages and
disadvantages. What we were looking at in considering a sunset
provision, in addition to the others that were mentioned, is
the means to maintain our strategic flexibility in the long
term, given that you constantly have changes in the security
environment and the strategic environment. So that was a
provision that was considered.
The Chairman. Well, where do you come out on it at this
point?
Mr. Esper. I think at this point it was considered and set
aside, given the balance of interests and given the other
options we had to ensure that we have some strategic
flexibility.
The Chairman. Thank you. Well, I appreciate very much the
testimony that you have given. It is a very strong part of the
record that we are establishing. As I mentioned, we are
indebted to our first panel of witnesses a week ago, but you
have fortified the case enormously. We look forward to working
with each of the Departments represented here today and with
the administration as a whole to perfect the work that we will
attempt to do.
Unless you have additional testimony that has come to mind,
I thank you and we will look forward to hearing from the next
panel.
Admiral Mullen. Thank you very much, Mr. Chairman.
Mr. Taft. Thank you, Mr. Chairman.
Mr. Turner. Thank you, Mr. Chairman.
Mr. Esper. Thank you, Mr. Chairman.
Admiral Crowley. Thank you, Mr. Chairman.
Panel II
The Chairman. The chair would like to call now Paul Kelly,
Roger Rufe, Randi Thomas, and Joseph Cox to the witness table.
We thank each of you for coming to be with us this morning.
We look forward to your testimony. As I indicated to the
previous panel, we would like to incorporate all of your
statements, the full statements, into the record. I will ask
you to proceed as you wish, either with those statements or
with summaries or points that you wish to make. I would ask
that you testify in the order that I introduced you: first of
all, Mr. Kelly, then Admiral Rufe, then Ms. Thomas, and then
Mr. Cox. Mr. Kelly.
STATEMENT OF PAUL L. KELLY, SENIOR VICE PRESIDENT, ROWAN
COMPANIES, INC., HOUSTON, TX
Mr. Kelly. Thank you, Mr. Chairman for inviting me to
testify before you today to express the U.S. oil and natural
gas industry's views on the important subject of United States
accession to the United Nations Law of the Sea Convention.
Taken together, the three associations I am representing,
the American Petroleum Institute, the International Association
of Drilling Contractors, and the National Ocean Industries
Association, represent the full spectrum of American companies
involved in all phases of oil and natural gas exploration and
production in the oceans of the world, as well as the marine
transportation of petroleum and petroleum products.
Offshore oil and natural gas is now the world's biggest
marine industry, where oil production alone can have a value of
more than $300 billion per annum. This compares to global
shipping revenues of $234 billion and expenditures of all the
world's navies amounting to $225 billion. Submarine cables,
which provide part of the World Wide Web and enable the very
existence of the Internet is the next largest marine business
with $86 billion in revenues. And incidentally, that important
industry is on record as supporting U.S. accession to the
convention.
In addition to activities in areas under U.S. jurisdiction,
such as Alaska and the Gulf of Mexico, our Nation has
substantial interests in offshore oil and natural gas
development activities globally given our significant reliance
upon imported oil. U.S. oil and natural gas production
companies, as well as oil field drilling equipment and service
companies, are important players in the competition to locate
and develop offshore natural gas and oil. The pace of
technological advancement, which drove the need to define the
outer limits of the continental margin, has not abated.
Advances in technology and increased efficiencies are taking us
to greater and greater water depths and rekindling interest in
areas that once were considered out of reach or uneconomical.
Recognizing the importance of the convention to the energy
sector, the National Petroleum Council, an advisory body to the
United States Secretary of Energy, in 1973 published an
assessment of industry needs in an effort to influence the
negotiations. Entitled Law of the Sea: Particular Aspects
Affecting the Petroleum Industry, it contained conclusions and
recommendations in five key areas, including freedom of
navigation, stable investment conditions, protection of the
marine environment, accommodation of multiple uses, and dispute
settlement. The views reflected in this study had a substantial
impact on the negotiations, and most of its recommendations
found their way into the convention in one form or another.
Having been satisfied with the changes made to the
convention, the U.S. oil and natural gas industry's major trade
associations, including API, IADC, and NOIA, support
ratification of the convention. Also, the Outer Continental
Shelf Policy Committee, an advisory body to the United States
Secretary of the Interior on matters relating to our offshore
oil and gas and natural leasing program, in 2001 adopted
resolutions supporting the U.S. acceding to the convention.
Considering the remarkable advances in offshore exploration
technology that have taken us farther and farther offshore into
deeper and deeper water, the assessment of the National
Petroleum Council in 1973 seems remarkably prescient in
retrospect. And that assessment rings more true today than
ever.
With what may be the largest and most productive
continental shelf in the world, the U.S. now obtains about 28
percent of its natural gas and almost as much of its oil from
the Outer Continental Shelf. This share of U.S. production is
increasing, thanks to new world-class oil discoveries in the
deep waters of the Gulf of Mexico.
Offshore petroleum production is a major technological
triumph. We now have world-record complex development projects
located in 5,000 to 6,000 feet of water in the Gulf of Mexico
which were thought unimaginable a generation ago. Even more
eye-opening, a number of exploration wells have been drilled in
the past 3 years in over 8,000 feet of water, and a world-
record well has been drilled in over 9,000 feet of water. New
technologies are taking oil explorers out more than 200 miles
offshore for the first time, thus creating a more pressing need
for certainty and stability in delineation of the outer shelf
boundary.
Under the convention, the continental shelf extends seaward
to the outer edge of the continental margin or to the 200-mile
limit of the EEZ, whichever is greater, to a maximum of 350
miles. The U.S. understands that such features as the Chukchi
Plateau and its component elevations, situated north of Alaska,
are not subject to the 350-mile limitation and claims on the
part of the United States could go as far as 600 miles with
regard to that area. U.S. companies are interested in setting
international precedents by being the first to operate in areas
beyond 200 miles and to continue demonstrating environmentally
sound drilling development and production technologies.
It is in the best interest of the U.S. to register its
claims extending the outer limits of our continental shelf
where appropriate. In so doing, the United States could expand
its areas for mineral exploration development by more than
291,000 square miles. And we need to get on with the mapping
work and other analyses and measurements required to
substantiate our claims. Some of the best technology for
accomplishing this resides in the United States. Establishing
the continental margin beyond 200 miles is particularly
important in the Arctic where there are a number of countries
vying for the same resource area. In fact, Russia has already
submitted claims to the U.N. body with respect to the outer
limit of its continental shelf in the Arctic.
As a result of the settlement of our maritime boundary with
Mexico recently, according to the Minerals Management Service
of the Department of the Interior, seven leases have been
awarded to companies in the far offshore Gulf of Mexico which
include stipulations that any discoveries made in those leases
could be subject to the royalty provisions of article 82 of the
convention. MMS also reports that one successful well has been
drilled recently about 2.5 miles inside the U.S. EEZ. So we are
getting closer and closer. Details on how the revenue sharing
scheme will work beyond 200 miles remain somewhat unclear, and
without ratification, the U.S. Government's ability to
influence decisions on implementation of this provision is
limited or nonexistent. This creates uncertainty for industry.
Ratification of the convention also has an important
bearing on a longer-term potential energy source that has been
the subject of much resource and investigation by the
Department of Energy, and that is gas hydrates. Gas hydrates
are ice-like crystalline structures of water that form cages
that trap low molecular weight gas molecules, especially
methane, and have recently attracted international attention
from government and scientific communities. World hydrate
deposits are estimated to total more than twice the world's
reserves of all oil, natural gas, and coal deposits combined.
The U.S. needs to have a seat at the table of the Continental
Shelf Commission in order to influence development of any
international rules or guidelines that could affect gas
hydrates beyond our EEZ.
Let me turn my attention briefly to marine transportation.
About 44 percent of U.S. maritime commerce consists of
petroleum and petroleum products. Trading routes are secured by
provisions in the convention combining customary rules of
international law, such as the right of innocent passage
through territorial seas, with new rights of passage through
straits and archipelagos. U.S. accession to the convention
would put us in a much better position to invoke such rules and
rights.
The outlook for United States energy supply in the first 25
years of the new millennium, truly brings home the importance
of securing sea routes through which imported oil and natural
gas is transported.
According to API's Monthly Statistical Report, published
just last week on October 15, imports of crude oil reached a
new, all-time high in September. At close to 10.4 million
barrels per day, crude imports surpass the previous high record
reached in April 2001. When combined with higher volumes for
products such as gasoline, diesel fuels, and jet fuel, total
imports amounted to nearly two-thirds of domestic deliveries
for the month. This is an extraordinary volume of petroleum
liquids being transported to our shores in ships every day.
Recently there has been a newer development involving
emerging economic and technology development that should give
us additional concern for the Nation's energy transportation
security. The Energy Information Agency's 2003 Outlook states
that despite the projected increase in domestic natural gas
production, over the next 20 years an increasing share of U.S.
gas demand will also be met by imports. All four existing LNG
import facilities in the U.S. are now open, and three of the
four have announced capacity expansion plans. Meanwhile,
several additional U.S. LNG terminals are under study by
potential investors, and orders for sophisticated new LNG ships
are being placed. This means even more ships following transit
lanes from the Middle East, West Africa, Latin America,
Indonesia, Australia, and possibly Russia, to name the
prominent regions seeking to participate in the U.S. natural
gas market.
In addition, world oil demand in 2001 was 76.9 million
barrels per day. Up to 1985, oil demand in North America was
twice as large as Asia. As developing countries improve their
economic conditions and transportation infrastructure, we could
soon see Asian oil demand surpass North American demand. By
2025, world demand is expected to reach nearly 119 million
barrels per day. The convention can provide protection of
navigational rights and freedoms in all these areas through
which tankers will be transporting larger volumes of oil and
gas in all directions.
Finally, I would like to make a comment on the need for
U.S. involvement in Law of the Sea governance. The United
States should be in a position to exercise leadership and
influence on how the Seabed Authority will implement its role
in being the conduit for revenue sharing from broad margin
States such as the United States. Yet at the present time, we
do not have membership on key subsidiary bodies of the Seabed
Authority and cannot have membership until we accede to the
convention. With 143 countries and the European Union having
ratified the convention, the convention will be implemented
with or without our participation and will be sure to affect
our interests.
For all these reasons, the U.S. oil and gas industry
supports ratification of the convention at the earliest date
possible.
[The prepared statement of Mr. Kelly follows:]
Prepared Statement of Paul L. Kelly, Senior Vice President, Rowan
Companies, Inc., Houston, TX
on behalf of
The American Petroleum Institute
The International Association of Drilling Contractors
The National Ocean Industries Association
Mr. Chairman and members of the Committee:
Thank you for inviting me to testify before you today to express
the U.S. oil and natural gas industry's views on the important subject
of United States accession to the United Nations Law of the Sea (LOS)
Convention.
Taken together, the three associations I am representing here
today, the American Petroleum Institute (API), the International
Association of Drilling Contractors (IADC) and the National Ocean
Industries Association (NOIA), represent the full spectrum of American
companies involved in all phases of oil and natural gas exploration and
production in the oceans of the world, as well as the marine
transportation of petroleum and petroleum products.
The offshore oil and natural gas industry is a multibillion-dollar
industry. A recent economic survey of global ocean markets done in the
United Kingdom \1\ brings home clearly the economic significance of
offshore oil and natural gas production. Offshore oil and natural gas
is now the world's biggest marine industry where oil production alone
can have a value of more than $300 billion per annum. This compares to
global shipping revenues of $234 billion and expenditures of all the
world's navies amounting to $225 billion. Submarine cables, which
provide the ``worldwide'' part of the Worldwide Web and enable the very
existence of the Internet, is the next largest marine business with $86
billion in revenues; and incidentally, that important industry is on
record as supporting United States accession to the LOS Convention. In
addition to activities in areas under United States jurisdiction such
as Alaska and the Gulf of Mexico, our nation has substantial interests
in offshore oil and natural gas development activities globally, given
our significant reliance upon imported oil. U.S. oil and natural gas
production companies, as well as oilfield drilling, equipment and
service companies, are important players in the competition to locate
and develop offshore natural gas and oil resources. The pace of
technological advancement, which drove the need to define the outer
limits of the continental margin, has not abated. Advances in
technology and increased efficiencies are taking us to greater and
greater water depths and rekindling interest in areas that once were
considered out of reach or uneconomic.
---------------------------------------------------------------------------
\1\ John Westwood, Barney Parsons and Will Rowley, Douglas Westwood
Associates, Canterbury, United Kingdom, ``Oceanography,'' vol. 14, no.
3/2001.
---------------------------------------------------------------------------
Recognizing the importance of the LOS Convention to the energy
sector, the National Petroleum Council, an advisory body to the United
States Secretary of Energy, in 1973 published an assessment of industry
needs in an effort to influence the negotiations. Entitled ``Law of the
Sea: Particular Aspects Affecting the Petroleum Industry,'' it
contained conclusions and recommendations in five key areas including
freedom of navigation, stable investment conditions, protection of the
marine environment, accommodation of multiple uses, and dispute
settlement. The views reflected in this study had a substantial impact
on the negotiations, and most of its recommendations found their way
into the Convention in one form or another.
Among the provisions that were influenced by the study are the
following:
confirmation of coastal state control of the continental
shelf and its resources to a distance of 200 nautical miles and
beyond to the outer edge of the continental margin, defined on
the basis of geological criteria;
establishment of a Continental Shelf Commission to advise
states in delimiting their continental shelves in order to
promote certainty and uniformity;
specific provisions on the settlement of disputes related to
the delimitation of continental shelves among states with
opposite or adjacent coasts;
revenue sharing applicable to development of resources
beyond 200 nautical miles based on a modest royalty beginning
in the sixth year of production;
recognition of the role of the International Maritime
Organization in setting international safety and select
environmental standards;
allocation of enforcement responsibility for safety and
environmental standards among states of registry, port states,
and coastal states;
requirements for the prompt release of detained vessels and
crews upon the posting of bond; and
a comprehensive system of dispute settlement allowing a
choice among the International Court of Justice, a specialized
Law of the Sea Tribunal, and arbitration.
Having been satisfied with changes made to the Convention, the U.S.
oil and natural gas industry's major trade associations, including API,
IADC and NOIA, support ratification of the Convention by the United
States Senate. Also, the Outer Continental Shelf Policy Committee, an
advisory body to the United States Secretary of the Interior on matters
relating to our offshore oil and natural gas leasing program, in 2001
adopted resolutions supporting the United States acceding to the
Convention.
offshore oil and natural gas resources
The Convention is important to our efforts to develop domestic
offshore oil and natural gas resources. The Convention secures each
coastal nation's exclusive rights to the living and non-living
resources of the 200-mile exclusive economic zone (EEZ). In the case of
the United States this brings an additional 4.1 million square miles of
ocean under U.S. jurisdiction. This is an area larger than the U.S.
land area. The Convention also broadens the definition of the
continental shelf in a way that favors the U.S. as one of the few
nations with broad continental margins, particularly in the North
Atlantic, Gulf of Mexico, the Bering Sea and the Arctic Ocean.
Considering the remarkable advances in offshore exploration
technology that have taken us farther and farther offshore into deeper
and deeper water, the assessment of the National Petroleum Council in
1973 seems remarkably prescient in retrospect; and that assessment
rings more true today than ever.
With what may be the largest and most productive continental shelf
in the world, the U.S. obtains about 28 percent of its natural gas and
almost as much of its oil production from the outer continental shelf
(OCS); this share of U.S. production is increasing thanks to new world
class oil discoveries in the deep waters of the Gulf of Mexico.
exploration moving farther from shore into deeper waters
Offshore petroleum production is a major technological triumph. We
now have world record complex development projects located in 5,000-
6,000 feet of water in the Gulf of Mexico which were thought
unimaginable a generation ago. Even more eye-opening, a number of
exploration wells have been drilled in the past three years in over
8,000 feet of water and a world record well has been drilled in over
9,000 feet of water. New technologies are taking oil explorers out more
than 200 miles offshore for the first time, thus creating a more
pressing need for certainty and stability in delineation of the outer
shelf boundary. Before the LOS Convention there were no clear,
objective means of determining the outer limit of the shelf, leaving a
good deal of uncertainty and creating significant potential for
conflict. Under the Convention, the continental shelf extends seaward
to the outer edge of the continental margin or to the 200-mile limit of
the EEZ, whichever is greater, to a maximum of 350 miles. The U.S.
understands that such features as the Chukchi Plateau and its component
elevations, situated to the north of Alaska, are not subject to the
350-mile limitation. U.S. companies are interested in setting
international precedents by being the first to operate in areas beyond
200 miles and to continue demonstrating environmentally sound drilling
development and production technologies.
revenue sharing
The Convention provides a reasonable compromise between the vast
majority of nations whose continental margins are less than 200 miles
and those few, including the U.S., whose continental shelf extends
beyond 200 miles, with a modest obligation to share revenues from
successful minerals development seaward of 200 miles. Payment begins in
year six of production at the rate of one percent and is structured to
increase at the rate of one percent per year to a maximum of seven
percent. Our understanding is that this royalty should not result in
any additional cost to industry. Considering the significant resource
potential of the broad U.S. continental shelf, as well as U.S.
companies' participation in exploration on the continental shelves of
other countries, on balance the package contained in the Convention,
including the modest revenue sharing provision, clearly serves U.S.
interests.
importance of delineating the continental shelf
The Convention established the Continental Shelf Commission, a body
of experts through which nations may establish universally binding
outer limits for their continental shelves under Article 76. The
objective criteria for delineating the outer limit of the continental
shelf, plus the presence of the Continental Shelf Commission, should
avoid potential conflicts and provide a means to ensure the security of
tenure crucial to capital-intensive deepwater oil and natural gas
development projects.
It is in the best interest of the U.S. to register its claims
extending the outer limits of our continental margin beyond 200 miles
where appropriate--in so doing the U.S. could expand its areas for
mineral exploration and development by more than 291,383 square miles.
We need to get on with the mapping work and other analyses and
measurements required to substantiate our claims, however. Some of the
best technology for accomplishing this resides in the United States.
Establishing the continental margin beyond 200 miles is particularly
important in the Arctic, where there are a number of countries vying
for the same resource area. In fact, Russia has already submitted
claims with respect to the outer limit of its continental shelf in the
Arctic.
resolution of boundary disputes
As regards maritime boundaries, there presently exist about 200
undemarcated claims in the world with 30 to 40 actively in dispute.
There are 24 island disputes. The end of the Cold War and global
expansion of free market economies have created new incentives to
resolve these disputes, particularly with regard to offshore oil and
natural gas exploration. During the last few years hundreds of
licenses, leases or other contracts for exploration rights have been
granted in a variety of nations outside the U.S. These countries are
eager to determine whether or not hydrocarbons are present in their
continental shelves, and disputes over maritime boundaries are
obstacles to states and business organizations which prefer certainty
in such matters. We have had two such cases here in North America where
bilateral efforts have been made to resolve the maritime boundaries
between the U.S. and Mexico in the Gulf of Mexico and between the U.S.
and Canada in the Beaufort Sea. Both of these initiatives have been
driven by promising new petroleum discoveries in the regions. The
boundary line with Mexico was resolved in 2000 after a multi-year
period of bilateral negotiations. Negotiations with Canada, however,
seem to be languishing.
While such bilateral resolution is always an option, the Convention
provides stability and recognized international authority, standards
and procedures for use in areas of potential boundary dispute, as well
as a forum for dealing with such disputes and other issues.
The settlement we made with Mexico now makes it possible for leases
in the Gulf of Mexico issued by the Department of the Interior's
Minerals Management Service (MMS) to be subject to the Article 82
``Revenue Sharing Provision'' calling for the payment of royalties on
production from oil and natural gas leases beyond the EEZ. According to
MMS, seven leases have been awarded to companies in the far offshore
Gulf of Mexico which include stipulations that any discoveries made on
those leases could be subject to the royalty provisions of Article 82
of the Convention. MMS also reports that one successful well has been
drilled about 2.5 miles inside the U.S. FEZ. Details on how the revenue
sharing scheme will work remain unclear, and without ratification the
U.S. Government's ability to influence decisions on implementation of
this provision is limited or non-existent. This creates uncertainty for
U.S. industry.
gas hydrates
Ratification of the Law of the Sea Convention also has an important
bearing on a longer-term potential energy source that has been the
subject of much research and investigation at the U.S. Department of
Energy for several years: gas hydrates.
Gas hydrates are ice-like crystalline structures of water that form
``cages'' that trap low molecular weight gas molecules, especially
methane, and have recently attracted international attention from
government and scientific communities. World hydrate deposits are
estimated to total more than twice the world reserves of all oil,
natural gas and coal deposits combined.
Methane hydrates have been located in vast quantities around the
world in continental slope deposits and permafrost. They are believed
to exist beyond the EEZ. If the hydrates could be economically
recovered, they represent an enormous potential energy resource. In the
U.S. offshore, hydrates have been identified in Alaska, all along the
West Coast, in the Gulf of Mexico, and in some areas along the East
Coast. The technology does not now exist to extract methane hydrates on
a commercial scale. A joint industry group of scientists has been at
work in the Gulf of Mexico since May of this year examining the hydrate
potential in several deepwater canyons. This work is intended to help
companies find and analyze hydrates seismically and to complete an
area-wide profile of hydrate deposits.
In the Methane Hydrate Research and Development Act of 2000
Congress mandated the National Research Council to undertake a review
of the Methane Hydrate Research and Development Program at the
Department of Energy to provide advice to ensure that significant
contributions are made towards understanding methane hydrates as a
source of energy and as a potential contributor to climate change. That
review is now underway. The U.S. Navy has also done work on gas
hydrates, as has the U.S. scientific community, including universities
such as Louisiana State University and Texas A&M. Significant research
is also being conducted by scientific institutions in Japan. The United
States needs to have a seat at the table of the Continental Shelf
Commission in order to influence development of any international rules
or guidelines that could affect gas hydrate resources beyond our EEZ.
marine transportation of petroleum
Oil is traded in a global market with U.S. companies as leading
participants. The LOS Convention's protection of navigational rights
and freedoms advances the interests of energy security in the U.S.,
particularly in view of the dangerous world conditions we have faced
since the tragic events of September 11, 2001. About 44 percent of U.S.
maritime commerce consists of petroleum and petroleum products. Trading
routes are secured by provisions in the Convention combining customary
rules of international law, such as the right of innocent passage
through territorial seas, with new rights of passage through straits
and archipelagoes. U.S. accession to the Convention would put us in a
much better position to invoke such rules and rights.
u.s. oil imports at all-time high
The outlook for United States energy supply in the first 25 years
of the new millennium truly brings home the importance of securing the
sea routes through which imported oil and natural gas is transported.
According to API's Monthly Statistical Report published on October
15, 2003, imports of crude oil reached a new, all-time high in
September. At close to 10.4 million barrels per day, crude imports
surpassed the previous high reached in April 2001. When combined with
higher volumes for products such as gasoline, diesel fuel and jet fuel,
total imports amounted to nearly two thirds of domestic deliveries for
the month. This is an extraordinary volume of petroleum liquids being
transported to our shores in ships every day.
The Department of Energy's Energy Information Administration (ETA),
in its 2003 Annual Energy Outlook, projects that by 2025, net petroleum
imports, including both crude oil and refined products on the basis of
barrels per day, are expected to account for 68 percent of demand, up
from 55 percent in 2001. Looking at the October numbers from API makes
one wonder whether 2025 is fast approaching.
growing natural gas imports
ETA's 2003 Outlook also states that, despite the projected increase
in domestic natural gas production, over the next twenty years an
increasing share of U.S. gas demand will also be met by imports. A
substantial portion of these imports will come in the form of liquefied
natural gas (LNG). All four existing LNG import facilities in the U.S.
are now open, and three of the four have announced capacity expansion
plans. Meanwhile, several additional U.S. LNG terminals are under study
by potential investors, and orders for sophisticated new LNG ships are
being placed. This means even more ships following transit lanes from
the Middle East, West Africa, Latin America, Indonesia, Australia, and
possibly Russia, to name the prominent regions seeking to participate
in the U.S. natural gas market.
global significance of persian gulf exports
Another important factor to consider is that, according to ETA,
Persian Gulf exports as a percentage of world oil imports are in the
process of growing from 30 percent in 2001 to 38 percent in 2025. The
Persian Gulf is a long, semi-enclosed sea. Much of it lies beyond the
12-mile limit of the territorial sea but not beyond the 200-mile limit.
Within the Persian Gulf there are seven settled international maritime
boundaries and as many as nine possible maritime boundaries that have
not been resolved in whole or in part.\2\
Fortunately, from the standpoint of U.S. and world dependence on
Persian Gulf oil imports, the LOS Convention provides authority that in
those areas beyond the territorial sea the right of high seas
navigation applies to all vessels. According to the Convention, within
the territorial sea vessels have the right of innocent passage and, for
straits used for international navigation, the right of transit passage
applies. It goes without saying that the United States would be in a
better position to secure these rights in this unstable area if it were
a party to the Convention.
rising world oil demand
World oil demand in 2001 was 76.9 million barrels per day. Up to
1985 oil demand in North America was twice as large as Asia. As
developing countries improve their economic conditions and
transportation infrastructure we could soon see Asian oil demand
surpass North American demand. By 2025 world demand is expected to
reach nearly 119 million barrels per day. Steady growth in the demand
for petroleum throughout the world means increases in crude oil and
product shipments in all directions throughout the globe. The
Convention can provide protection of navigational rights and freedoms
in all these areas through which tankers will be transporting larger
volumes of oil and natural gas.
need for u.s. involvement in los governance
In conclusion, from an energy perspective we see potential future
pressures building in terms of both marine boundary and continental
shelf delineations and in marine transportation. We believe the LOS
Convention offers the U.S. the chance to exercise needed leadership in
addressing these pressures and protecting the many vital U.S. ocean
interests. Notwithstanding the United States' view of customary
international law, the U.S. petroleum industry is concerned that
failure by the United States to become a party to the Convention could
adversely affect U.S. companies' operations offshore other countries.
In November 1998, the U.S. lost its provisional right of participation
in the International Seabed Authority by not being a party to the
Convention. At present there is no U.S. participation, even as an
observer, in the Continental Shelf Commission--the body that decides
claims of OCS areas beyond 200 miles--during its important
developmental phase. The U.S. lost an opportunity to elect a U.S.
commissioner in 2002, and we will not have another opportunity to elect
a Commissioner until 2007.
The United States should also be in a position to exercise
leadership and influence on how the International Seabed Authority will
implement its role in being the conduit for revenue sharing from broad
margin States such as the U.S., yet the U.S. cannot secure membership
on key subsidiary bodies of the Seabed Authority until it accedes to
the Convention. Clearly United States views would undoubtedly carry
much greater weight as a party to the Convention than they do as an
outsider. With 143 countries and the European Union having ratified the
Convention, the Convention will be implemented with or without our
participation and will be sure to affect our interests.
It is for these reasons that the U.S. oil and natural gas industry
supports Senate ratification of the Convention at the earliest date
possible.
--------------
\2\ See ``Persian Gulf Disputes,'' comments prepared by Jonathan L.
Charney, Professor of Law, Vanderbilt University, for a conference on
``Security Flashpoints: Oil, Islands, Sea Access and Military
Confrontation,'' New York City on February 7-8, 1997.
The Chairman. Thank you very much, Mr. Kelly, for your
testimony.
I would like to call now on Admiral Rufe of The Ocean
Conservancy. Admiral.
STATEMENT OF VICE ADMIRAL ROGER T. RUFE, JR., USCG (RET.),
PRESIDENT, THE OCEAN CONSERVANCY, WASHINGTON, DC
Admiral Rufe. Good morning, Mr. Chairman, and I too thank
you for the opportunity to appear before you this morning and
present our views on the United States Convention on the Law of
the Sea.
In addition to being President of The Ocean Conservancy, I
am also a member of the Pew Oceans Commission, which I think as
you know, Mr. Chairman, strongly supports accession to this
convention.
I am here this morning representing The Ocean Conservancy,
and I will give a brief summary of my remarks.
The Ocean Conservancy strives to be the world's foremost
advocate for the oceans. Our headquarters are here in
Washington, and we have offices throughout the United States,
including Alaska, Maine, California, Florida, and the Virgin
Islands.
Since all oceans are connected and all species related, our
work to protect the oceans range from the local to the
international. The Ocean Conservancy serves on the Species
Survival Commission of the World Conservation Union and has led
efforts to extend protections for threatened marine species
worldwide. We have also been a major proponent for marine
protected areas both in the United States and abroad.
The Ocean Conservancy collaborated closely with our
colleagues at Oceana and the Center for International
Environmental Law in developing this testimony, and we have
prepared a joint statement in support of accession that is
appended to my written testimony for the record.
In your opening statement on October 14, Mr. Chairman, you
appropriately recognized the Law of the Sea as the
international law for the world's oceans. You also took the
opportunity to recognize the contributions of a former chair of
the committee, Senator Pell, to this important issue, and you
already recognized your past naval history. I might mention,
for the benefit of those who do not know, Senator Pell was a
very proud veteran of the United States Coast Guard and was a
Coast Guard Reserve retired officer. He characterized the Law
of the Sea as a constitution for the oceans, a characterization
that has been widely echoed by others. Both your and Senator
Pell's descriptions are entirely right. The convention is both
international law and a constitution for the world's oceans to
be used to guide and to promote positive international and
national decisionmaking over time.
The Ocean Conservancy strongly supports U.S. accession to
the convention. We also believe, however, that several of its
provisions require interpretive language to ensure that its
terms are not misconstrued as limiting the United States
regulatory authority to protect the marine environment. The
Ocean Conservancy is concerned that absent such language, an
argument could be made that the United States is precluded from
taking unilateral action where necessary to protect its marine
ecosystems through the adoption of national legislation.
For instance, the Senate must ensure that the United States
retains its full authority to regulate pollution from vessels
or prevent a spread of invasive species. On one hand, the
convention grants coastal States the authority to broadly
regulate for purposes of environmental protection. On the other
hand, it focuses on the rights to be enjoyed by ships in
traveling throughout the seas, as we have heard earlier today.
I have provided detailed descriptions of a number of
potentially problematic provisions in our written testimony.
This list is not intended to be exclusive. There may be
additional areas of potential ambiguity that warrant Senate
interpretation in its advice and consent. We would welcome the
opportunity to work with the committee and members of your
staff to address these issues through interpretive language.
I would also like to stress the importance of continued
international leadership by the United States after accession
to ensure that future changes to the convention advance
environmental goals. My comments here draw from the 1998
statement of the environmental community's views on accession
to the convention. The environmental community noted at that
time that the concept of precautionary principle did not exist
at the time the Law of the Sea Convention was negotiated and
that consequently the term did not appear in the convention.
Fortunately, the convention as a constitution does establish
some principles and tools that may provide a framework for
future application of the precautionary principle. Moreover,
subsequent multilateral agreements related to UNCLOS include
the use of the precautionary principle, including the
Straddling Stocks Agreement. We urge the United States to work
to ensure that subsequent changes to the convention
appropriately embrace the precautionary approach.
The Ocean Conservancy also urges the United States to take
a leadership role through the Law of the Sea Convention and
other treaties to ensure better implementation and enforcement
of fish conservation measures. The Law of the Sea treaty did
not resolve major issues regarding the management,
exploitation, and conservation of living marine resources,
particularly the highly migratory species of fish and
populations of fish that straddle the boundaries between States
and the high seas. The failure of governments to deal
effectively with these issues has led to widespread over-
fishing and conflicts between nations.
Recognizing the convention's limitations, the U.N.
fisheries conference was convened. The resulting U.N.
Straddling Stocks Agreement provisions are enforceable through
the convention's dispute resolution system, thus reinforcing
enforcement and compliance opportunities for parties to the
convention.
This example demonstrates the kind of leadership the United
States should continue to exercise in the future. It
illustrates how accession to the convention for this area, as
well as others, provides a foundation for the further
progressive development of international law.
In conclusion, Mr. Chairman, we strongly support U.S.
accession to the convention, and we urge the committee to
develop interpretive language, as necessary, in its advice and
consent to reconcile the Law of the Sea Convention's provisions
with U.S. statutory law, and to preserve the ability of the
United States to act to protect and conserve its marine
environment. We also urge the Senate to include report language
encouraging the United States to fully commit to its role as a
world leader in advancing environmental protections for areas
where the convention needs further development. It is our hope
that with accession the United States will lead by example so
that we may protect, maintain, and restore our magnificent
ocean trust for future generations.
Thank you, Mr. Chairman.
[The prepared statement of Admiral Rufe follows:]
Prepared Statement of Vice Admiral Roger T. Rufe, Jr., USCG (Ret.),
President, The Ocean Conservancy, Washington, DC
i. introduction and background
Mr. Chairman and Members of the Committee, thank you for the
opportunity to present our views on the United Nations Convention on
the Law of the Sea (UNCLOS or Convention). My name is Roger Rufe; I am
the President of The Ocean Conservancy.
A. The Ocean Conservancy
The Ocean Conservancy (TOC) strives to be the world's foremost
advocate for the oceans. Through science-based advocacy, research, and
public education, we inform, inspire, and empower people to speak and
act for the oceans. TOC is the largest and oldest nonprofit
conservation organization dedicated solely to protecting the marine
environment. Headquartered in Washington, D.C., TOC has offices
throughout the United States, including offices in Alaska, Maine,
California, and the Virgin Islands.
TOC has a long history as a leading proponent of numerous
international initiatives to conserve the world's most biologically
vulnerable marine animals--specifically marine mammals, sea turtles,
sharks and their close relatives, skates and rays. TOC serves on the
Species Survival Commission of the IUCN and has led efforts to extend
protections for threatened marine species. We also helped secure
listing of basking and whale sharks under the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES) and passage of the International Dolphin Conservation Act and
its sister treaty, The Antiqua Convention to the Inter-American
Tropical Tuna Convention. To reduce litter on beaches, each year TOC
sponsors an International Coastal Cleanup, assisted by hundreds of
thousands of volunteers from over 100 participating countries.
We have also been a major proponent of marine protected areas, both
in the United States and abroad. Since the 1980s, The Ocean Conservancy
has been one of the few U.S. organizations to work collaboratively with
Cuban universities and researchers to inventory and conserve marine
biodiversity in Cuba. More recently, this work has expanded to include
an exciting and promising new marine protected area project in
Colombia. As all waters are connected, our work on marine pollution
ranges from urging the strongest Clean Water Act protections for all
waters in the United States to efforts to restore and protect sensitive
coral reef habitats from marine pollution produced by ocean-going
ships.
TOC collaborated closely with our colleagues at the Center for
International Law and Oceana in developing this testimony, and we have
prepared a joint statement in support of accession that is appended to
this testimony. My testimony on behalf of TOC is organized as follows:
first, I will explain why we support U.S. accession to the United
Nations Convention on the Law of the Sea. Second, I will highlight
several issues that require the Senate's attention and development of
interpretive language so that potentially ambiguous terms of the
Convention are not misconstrued as limiting the United States'
authority to protect its marine environment. In the third part of my
testimony, I will highlight a few environmental issues that warrant
further attention by the United States after our accession to ensure
that implementation of, and future changes to, the Convention fully
advance environmental goals and protect our interests in healthy,
vibrant oceans.
B. UNCLOS
In his opening statement for the October 14th hearing, Chairman
Lugar appropriately recognized the Law of the Sea as the international
law for the world's oceans. The Chairman also took the opportunity to
recognize the contributions of a former Chair of the Committee, Senator
Pell, to this important issue. Senator Pell characterized the Law of
the Sea as a ``constitution'' for the oceans,\1\ a characterization
that has been widely echoed by others. As the committee has heard from
many witnesses, UNCLOS is an important and progressive international
agreement that largely reflects values that our nation has worked to
implement over the years. The Convention imposes basic obligations for
all states to protect and preserve the marine environment and to
conserve marine living species. These commitments are testaments to
enlightened diplomacy to manage shared resources. Perhaps even more
importantly, the Convention calls for the further development of global
and regional rules on these subjects, and provides a framework of
principles and objectives for that development. Both Chairman Lugar and
Senator Pell's descriptions are entirely right: the Convention is both
international law and a constitution for the world's oceans, to be used
to guide and promote positive international and national decision-
making over time.
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\1\ 141 Cong. Rec. S2, 266-67 (daily ed. Feb 7, 1995) (statement of
Senator Pell).
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The Third United Nations Conference on the Law of the Sea was
convened in late 1973. The Conference continued until its final meeting
in late 1982, at which time the final act was signed and the Convention
was opened for signature. As time went on, it became clear that
developed states were not willing to agree to Part Xl of the Convention
concerning deep seabed portions and mining of potentially valuable
metals. Thus, modifications to that provision were negotiated, and an
amending agreement was finalized in July of 1994. The U.S. signed the
Agreement in 1994 and recognizes the Convention as general
international law, but has not ratified it at this time. UNCLOS entered
into force in November of 1994 with the requisite sixty ratifications.
The Convention establishes law over a vast array of issues
affecting the world's oceans, ranging from maritime boundary
delimitation, to fisheries management, to the rights and duties of
ships with regard to navigation, to ownership of marine resources. The
United States' interests in becoming a signatory to the Convention are
similarly broad and diverse, and the Committee has heard from many
witnesses representing these interests, all in support of accession.
Our testimony will be limited to a brief commentary on the
environmental benefits and implications of U.S. accession at this time.
ii. toc statement in support of u.s. accession to unclos
There is general agreement in the environmental community that the
Convention serves the environmental interests of the United States in
providing a stable legal framework,\2\ and as the foundation of public
order in the oceans.\3\ The primary environmental reason for
encouraging U.S. accession to UNCLOS at this time is to give the United
States the credibility and full rights accorded to a signatory,
ensuring that the United States is in the best position to negotiate
and lead future applications of this constitution for the oceans.
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\2\ In 1998 Clifton Curtis prepared a statement of accession
endorsed by many environmental organizations, including The Ocean
Conservancy (then the Center for Marine Conservation). This testimony
draws from that statement in its discussion of dispute settlement
procedures, the precautionary principle and fisheries conservation
measures. See also, The United Nations Convention on the Law of the Sea
and the Marine Environment: A Non Governmental Perspective, Clifton E.
Curtis, Geo. Int'l Envtl. L. Rev., 7: 739-743 (1995).
\3\ See Statement by Robert Hirshon, President, the American Bar
Association, to the Commission on Ocean Policy, (November 13, 2001),
available at http://oceancommission.gov/meetings/nov 13--14--01 /
hirshon--testimony.pdf.
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The Committee has heard from many witnesses that our failure to
ratify this global treaty has hurt us to some extent economically,
diplomatically and environmentally. These witnesses have rightly noted
that our failure to ratify the Convention has hurt not only our
international credibility, but also our ability to effect future
changes in the terms and agreements upon which international law is
based. The United States is a world leader in marine conservation, and
our accession to UNCLOS will greatly help us advance international
standards and practices.
While the United States is a world superpower, we must fully engage
our fellow nations and secure the cooperation of the international
community if we are to be successful in protecting our oceans and their
resources. For example, currently the United States adheres to the
fisheries conservation measures in the Law of the Sea and subsequent
Straddling Stocks Agreement, and we treat them as customary
international law. However, unless we become a signatory to the treaty,
we are without recourse to enforce this Agreement's terms with regard
to other states which do not. We are also unable to fully represent
U.S. interests in negotiating future changes or terms to both of these
agreements. Both the Pew and the Federal Oceans Commission have
recently recommended accession for this purpose: to secure a positive
environmental framework for U.S. ocean management. In sum, it is
impossible to be a world leader relative to the health of the oceans
without full participation in the international rule of law that
applies to them.
Therefore, TOC urges accession at this time primarily to enable the
United States to be a full participant and negotiator in the future
development of the terms of the Convention. However, recognizing some
of the environmental implications of our accession upon U.S. regulatory
authority, we urge the Senate to include several interpretive
statements as part of the record in giving its advice and consent to
the President, and to be included in our accession instrument. These
interpretive statements must clarify how some UNCLOS provisions will be
implemented by the United States, so that our full authority to protect
our marine environment and resources will be preserved and exercised
effectively in the future. Part III of this testimony will address
several areas requiring interpretive language to be developed by the
Senate with its advice and consent.
iii. issues requiring interpretive statements
UNCLOS is a self-executing treaty, meaning the United States does
not need to pass additional national legislation to implement its
terms. By acceding to the treaty, the United States indicates its
intent to be bound by the Convention. The broad scope and general
nature of UNCLOS presents significant interpretational challenges that
must be fully addressed by the United States in its accession. We are
concerned that because of some potential ambiguities between the
Convention's terms and the United States' own statutory framework, an
argument could be made that the United States is precluded from taking
unilateral action where necessary to protect its marine ecosystems
through the adoption of protective national legislation.
Before I summarize those provisions, let me provide a specific
example. In the Department of Justice's 1998 prosecution of Royal
Caribbean Cruise Lines (RCCL), the company attempted to use the
Convention as a shield to prosecution.\4\ The Coast Guard had observed
a cruise ship dumping oil in the waters off the Bahamas on its way to
Miami. RCCL claimed it was immune from criminal prosecution in the
United States under UNCLOS. Although the court denied RCCL's motion to
dismiss on those grounds, this case illustrates the potential conflict
with the Convention, even before ratification, and the willingness of
industry to employ its terms to attempt to avoid U.S. health, safety
and environmental laws.\5\ The case also demonstrates the potential for
further confusion absent interpretation by the United States.
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\4\ U.S. v. Royal Caribbean Cruises, Ltd, 11 F. Supp.2d 1358 (S.D.
Florida, 1998).
\5\ See William A. Goldberg, Cruise Ships, Pollution and
International Law: The United States Takes on Royal Caribbean Cruise
Lines, 19 Wis. Int'l. L.J. 71 (2000), calling into question the
continuing ability of international law to control pollution in the
world's waterways. See also Shaun Gehan, United States v. Royal
Caribbean Cruises, Ltd: Use of Federal ``False Statements Act'' to
Extend Jurisdiction over Polluting Incidents into Territorial Seas of
Foreign States, 7 Ocean & Coastal L.J. 167 (2001), concluding that
similar applications of domestic law are entirely consistent with the
goals of the applicable international treaties. Id., at 168.
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Therefore, it is crucial that the United States indicate its intent
to implement UNCLOS's provisions in a manner that is consistent with
existing U.S. statutory law and preserves our ability to act to protect
and conserve the marine environment. I will now turn to the main areas
of potential conflict or confusion between UNCLOS and U.S. provisions
on environmental matters. In each case, we recommend that the Senate
reconcile these conflicts through the inclusion of interpretive
language, to be delivered with the United States' instrument of
accession. We recognize that there may be other areas of potential
ambiguity that warrant Senate interpretation in its advice and consent.
We would welcome the opportunity to work with the Committee to address
these issues through interpretive language.
A. Pollution From Vessels
The Law of the Sea is particularly vague with respect to the rights
of a coastal state to protect itself against pollution from ships.
On one hand, the Convention grants coastal states the authority to
broadly regulate for the purposes of environmental protection. Within
the Exclusive Economic Zone (EEZ), Article 56 grants coastal states
``sovereign rights'' for the purpose of (among other things)
``conserving and managing the natural resources,'' as well as
jurisdiction over ``the protection and preservation of the marine
environment.'' On the other hand, Article 211, which generally
discusses the regulation of pollution from vessels, potentially limits
this broad authority. Article 211 permits a coastal state to establish
particular requirements for the prevention, reduction and control of
pollution of the marine environment ``as a condition for the entry of
foreign vessels into their ports,'' and where ``conforming to and
giving effect to generally accepted international rules and standards
established through the competent international organizations . . .''
Thus, potentially a state may not regulate pollution discharges from
vessels in the EEZ unless it is doing so either as a condition of port
entry or to give effect to international standards.
Relative to the territorial sea, there is additional ambiguity
between the balance of the authority vested in the coastal state, and
the rights of ships passing in innocent passage. Article 21 grants
coastal states the authority to adopt laws and regulations for several
purposes, including the conservation of the living resources of the
sea, the prevention of infringement of the fisheries laws and
regulations of the coastal state, the preservation of the environment
of the coastal state and the prevention, reduction and control of
pollution thereof, and the prevention of infringement of the customs,
fiscal immigration or sanitary laws and regulations of the coastal
state. However, all of these are subject to limitations in Article
21.2, preventing a state from imposing restrictions on design,
construction, manning, or equipment upon a foreign ship in innocent
passage unless the state is doing so to give effect to ``generally
accepted international rules or standards.'' Unfortunately, no clear
view has been articulated either at the international level or within
the United States as to what does or should constitute a ``generally
accepted international standard'' under these articles.
Without clarification by the United States, these provisions could
be interpreted to preclude the U.S. from adopting legislation--even in
the absence of any international dialogue on a particular subject--as
may be necessary to protect its marine ecosystems. It could potentially
limit the U.S. from taking necessary steps to protect the territorial
sea except to give effect to those general rules or standards.
Although generally the United States exercises jurisdiction in
accordance with UNCLOS provisions, the Oil Pollution Act of 1990 (OPA)
is one example of the U.S. exercising extraterritorial jurisdiction and
exceeding the standards in UNCLOS.\6\ OPA requires all ships operating
in U.S. waters to be constructed with a double-hulled design.\7\
Additionally foreign vessels lightering in the U.S. EEZ, including
``those not intending to enter United States waters,'' must maintain
certificates of financial responsibility if some of the oil is destined
for the United States. OPA also imposes a series of additional
requirements for vessels transferring oil or hazardous materials in the
marine environment. Passed in response to the devastating Exxon Valdez
oil spill off the coast of Prince William Sound in Alaska, OPA is a
clear example of the need to protect the United States' ability to act
in the absence of adequately protective international standards.
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\6\ See Christopher P. Mooradian, Protecting Sovereign Rights: The
Case for Increased Coastal State Jurisdiction over Vessel Pollution in
the Exclusive Economic Zone, 82 Boston U.L. Rev. 767, 801, 802 (2002).
\7\ 46 U.S.C. 3703(a)(c)(3).
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The Senate must therefore ensure in its advice and consent that the
provisions in UNCLOS do not overly limit the current authority of the
United States to regulate pollution from vessels by clarifying the
phrase ``generally accepted international standards.'' The Senate
should also specify that the U.S. believes it is free to act where
necessary to protect its waters where the regulated activity is not
addressed by a specific international rule or standard to prevent,
reduce or control its pollution.
B. Treatment of Invasive Species
The introduction of invasive species via ballast water is a
continuing and growing challenge for the protection of U.S. resources,
both inland and throughout the EEZ. The potential ecological damage
from invasive species is enormous. According to the International
Maritime Organization, invasive species are one of the four greatest
threats to the health of the world's oceans, along with other
pollution, overexploitation of marine resources, and destruction of
marine habitat. The discharge of ballast water from ships is the number
one source of marine invasive species in the United States.\8\
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\8\ See, e.g., Canton and Geller, ``Ecological Roulette: The Global
Transport and Invasion of Nonindigenous Marine Organisms,'' Science
(1993); Marine Board of the National Research Council, Stemming the
Tide, National Academy Press, Washington D.C. (1996).
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UNCLOS, however, fails to clearly address the problem of invasive
species. If the treaty were interpreted such that invasive species were
intended to be covered by the broad definition of ``pollution'' as
defined in Article 1.1.3, then coastal states would be potentially
constrained in their ability to prevent the spread of these invasive
species from ships operating outside of the territorial sea. As the IMO
has failed to prescribe international standards for the treatment of
ballast water, more stringent measures by the U.S. could be interpreted
as being ``beyond generally accepted international rules or
standards.'' \9\ This would leave the United States reliant upon the
remaining authority granted in 211 to require treatment and practices
as a condition of entry info port.
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\9\ UNCLOS Art. 211.5
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We urge instead the better interpretation that alien species are
not intended to be addressed by the definition of ``pollution'' by
UNCLOS. This interpretation is supported by the fact that invasive
species are addressed by Article 196, and not in Article 194, which
addresses the regulation of various types of marine pollution
generally. Moreover Article 196 distinguishes invasive species from
pollution within the provision. We recommend that the Senate include an
interpretive statement on this issue as part of its advice and consent
to be included with the instrument of accession specifying that the
United States does not view invasive species as ``pollution'' for
purposes of UNCLOS.
C. Conditions of Port State Entry
UNCLOS allows coastal states fairly wide authority to prescribe
conditions of entry upon foreign vessels. This constitutes perhaps the
most obvious mechanism for addressing illegal or problematic shipping
discharges of pollution. Yet the U.S. should ensure its right to
establish more stringent or targeted measures as necessary to protect
and conserve the marine environment. For example, since 1996 the U.S.
has required ships entering the Great Lakes to exchange ballast water
from beyond the Exclusive Economic Zone as a condition of entering into
the Great Lakes system to minimize the spread of invasive species.\10\
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\10\ National Invasive Species Act of 1996, P.L. 105-332, 16 U.S.C.
4711 (1996). Both the Senate and the House are currently considering
legislation to substantially strengthen this program to require ballast
water treatment for ships coming into all U.S. ports (S. 525 and H.R.
1080).
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We urge the Senate to include an interpretive statement on this
issue as part of its advice and consent, to be included with the
instrument of accession. This statement should clarify that the U.S.
interprets Articles 25.2 and 211.3 to recognize longstanding rights of
states to impose conditions on the entry of vessels into ports or
internal waters. Conditions on port of entry include conditions on
operation and design of a vessel as it proceeds to a given U.S. port of
call, extending seaward as necessary.
D. Enforcement of Non-Monetary Penalties in the Territorial Sea
Article 230.2 of UNCLOS authorizes only monetary penalties for
violations committed in the territorial sea, except in the case of ``a
willful and serious act of pollution.'' U.S. law (e.g. the Clean Water
Act), currently authorizes criminal penalties as well as broad civil
penalties for illegal discharges in the territorial sea.
Two potential ambiguities are created by reconciling the UNCLOS
provisions with U.S. law. The first is whether the monetary penalties
authorized by UNCLOS are consistent with the U.S. concept of ``civil
penalties'' so as to potentially allow for injunctive relief,
administrative orders or restitution. And second, in determining where
criminal penalties may be available in the territorial sea, to what
extent is ``willful and serious'' consistent with the U.S. concept of
mens rea; does it mean knowing, negligent or grossly negligent?
So that this provision is not construed in a manner inconsistent
with U.S. interests, the Senate should make clear in its advice and
consent that the determination of ``willful and serious'' will be made
by the responsible U.S. agency in accordance with U.S. law; that the
``willful'' element is satisfied if the defendant was aware of the
conduct leading to the ``act of pollution,'' regardless of whether the
defendant intended the illegal discharge or the act of pollution, and
that the concept of monetary penalties means the full array of civil
remedies.
E. Environmental Protection in the Contiguous Zone
Article 33.1 of UNCLOS provides that in the contiguous zone, a
coastal state may exercise the control necessary to ``(a) prevent
infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea . . .''
There is a need to clarify the term ``sanitary laws'' to ensure
these include environmental measures to protect human or ecosystem
health within the territorial sea. These would include, for example,
laws to prevent the contamination of fish or shellfish consumed by
people, waters used for recreation, and the Clean Air Act standards
which protect human health from the impairment of air quality from
vessel emissions. International agreements negotiated in the time since
UNCLOS have adopted a similarly broad definition of ``sanitary.'' \11\
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\11\ E.g. Article XX(b), General Agreement on Tariffs and Trade,
(1994): Agreement on the Application of Sanitary and Phytosanitary
Measures, World Trade Organization.
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We urge the Senate to include an interpretive statement on this
issue as part of its advice and consent, to be included with the
instrument of accession. The statement must clarify that ``sanitary
laws'' under Article 33.1 include all laws and regulations that provide
direct or indirect protection to human health, welfare or the marine
environment.
F. Regulation of Industrial and Other Polluting Operations At Sea
The U.S. currently regulates certain industrial facilities such as
seafood processing vessels, aquaculture facility discharges, and
offshore oil and gas operations under the permitting requirements of
Sections 402 and 403 of the Clean Water Act. The U.S. also regulates
certain cruise ship operations in the waters around Alaska. Additional
measures will likely be necessary to address environmental issues
arising from other industrial activities on vessels.
UNCLOS, if interpreted too narrowly, could constrain the United
States' ability to adopt and enforce these important measures. As noted
earlier, Article 21.2 imposes limits on laws and regulations relating
to ``innocent passage.'' Article 211 also raises similar issues. We
urge the Senate to include an interpretive statement on this issue as
part of its advice and consent, to be included with the instrument of
accession. The statement must clarify that these vessels are not
engaging in or innocent passage as defined in Articles 18 and 19, and
that the U.S. is free to regulate vessels operating in a capacity other
than innocent passage as necessary to protect against polluting
discharges from these vessels.
G. Defining Clear Grounds for Inspection
Article 226 of UNCLOS limits port state inspections to ``required
documents'' except in certain cases, such as where there are ``. . .
[c]lear grounds for believing that the condition of the vessel or its
equipment does not correspond substantially with the particulars of
those documents. This would make many enforcement cases difficult, such
as those brought by the U.S. to determine whether a vessel is treated
with a toxic antifouling agent such as tributyltin, or to determine
whether a vessel is in compliance with a ballast water management
performance standard.
We urge the Senate to include in the record an interpretive
statement which establishes that ``clear grounds'' includes at least
``probable cause'' and ``reasonable suspicion,'' and that it is not
intended to preclude the right or ability of a port state to take
appropriate samples or tests.
H. Dispute Settlement Provisions as a Potential Bar to Protective
National Action
UNCLOS is one of the few international environmental agreements
requiring binding settlement for many environmental and conservation
disputes. States may choose among four options for binding settlement:
the International Court of Justice, the Tribunal for the Law of the
Sea, an arbitral tribunal, or a special expert arbitral tribunal
constituted to hear a dispute over navigation, fisheries, marine
environmental protection, or marine scientific research.
There is some concern that the Convention's dispute settlement
provisions could be used ``politically'' to try to prevent a state from
enforcing domestic laws that authorize or mandate trade measures. With
regard to trade-related challenges, these kinds of laws often are
placed into one of two categories, i.e. U.S. laws that apply unilateral
standards to foreign actions (e.g., MMPA, Sea Turtle amendments), and
U.S. laws addressed to nations that are diminishing the effectiveness
of an international agreement (e.g., Pelly Amendments).
The U.S. has taken the position, and TOC agrees, that UNCLOS was
not intended to cover trade measures. It imposes no obligations on
states relating to such measures, and the history of its negotiation
makes it clear that conservation measures were not intended to
encompass trade measures. There is therefore no substantive basis in
the Convention for challenges to trade measures based on national
standards.
We remain concerned, however, that other nations may attempt to
challenge trade measures or sanctions under the Convention's dispute
settlement provisions in order to try to discredit those standards and
gain an advantage in the World Trade Organization, where trade measures
based on the standards could be challenged. Where multilateral
processes fail to resolve pressing environmental problems, national
action remains a necessary and effective option. The U.S. may both
serve to protect against the problem, and to encourage positive
international action and raise awareness of the problem.\12\
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\12\ For example, in 1991, TOC and other groups petitioned the
United States to certify the Government of Japan under the Pelly
Amendments. The certification was for ``undermining the effectiveness
of international programs for the conservation of sea turtles'' due to
Japan's annual import of 20,000 kg of hawksbill sea turtle shell, and
thousands of skins of the olive ridley turtle from Mexico. Mexico
shortly thereafter ended the olive ridley harvest in order to avoid
trade sanctions, and Japan agreed to phase out the trade by the end of
1992. The threat of Pelly Amendment sanctions, while never imposed, in
conjunction with international pressure, played a crucial role in
preventing the extinction of the hawksbill sea turtles and in ending
the illegal harvest of olive ridley turtles in Mexico.
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Therefore, TOC urges the Senate to include interpretive language
clarifying that there is no substantive basis in the Convention for
those kinds of challenges, and that the Convention does not affect U.S.
authority to utilize these measures.
iv. issues requiring leadership from the u.s. in the implementation and
the future of unclos
The vision of UNCLOS as a constitution was introduced at the
beginning of this testimony, and it must be revisited here. As a
constitution, UNCLOS is not meant to be an inflexible, stagnant
document. Rather, its provisions must be interpreted over time, and its
processes applied to our expanding environmental awareness about our
world's oceans and the resources within them. In fact, subsequent
multilateral environmental agreements have both reaffirmed and expanded
upon UNCLOS's regime for the marine environment.\13\
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\13\ At the time of the first meeting of UNCLOS and the Stockholm
Convention in 1972, there were relatively few international agreements
concerning the environment. Since 1972, almost every county has adopted
at least one piece of environmental legislation, and there are more
than 870 legal instruments that contain at least some provisions
focusing on the environment. See Edith Brown Weiss, Introductory Note
to United Nations Conference on Environment and Development, 31
I.L.M.814 (1992); see also Jonathan L. Hafetz, Fostering Protection of
the Marine Environment and Economic Development: Article 121(3) and the
Third Law of the Sea Convention, 15 Am. Univ. I.L.R. 583, 592 (2000).
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The United States will be in a better position to address the
existing deficiencies or limitations in the rule of law for the oceans
if it becomes a signatory to UNCLOS. In its 1998 joint statement, which
provides the basis for my next remarks, the environmental community
urged the United States to embrace its leadership role in the world by
ensuring that UNCLOS serves as a framework for securing more protective
regimes for the conservation of marine ecosystems and wildlife. This
role must continue beyond accession to participation and negotiation
for improved international environmental practices over time. I would
like to take this opportunity to briefly mention a few of these
emerging and important issues.
A. Precautionary approach
The U.S. Commission on Ocean Policy and the Pew Oceans Commission
on which I served have both confirmed that our oceans are in
crisis.\14\ While we wait for the final recommendations of the Federal
Oceans Commission, the Pew Oceans Commission recognized that to address
the problems confronting our oceans, a new ethic is needed, one which,
in the face of uncertainty, urges caution and protection. The
precautionary approach today is endorsed internationally as a
fundamental policy.
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\14\ While the U.S. Commission on Ocean Policy's final findings and
recommendations are not yet published, draft recommendations and
findings are available on the Commission's Web site at .
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It is absolutely critical that such an approach is utilized for our
world's oceans. Relatively little is known about our oceans and the
resources they contain. Yet we are already witnessing the consequences
of failing to embrace the precautionary principle in our treatment of
the marine environment. Throughout history the oceans have been treated
as unlimited and resilient. We have generally exploited our resources,
in the oceans as on land, in absence of unanimous agreement that these
resources are at risk. As a result, proof of our error is beginning to
pour in. The draft report from the federal oceans commission concluded
last year that our oceans are in trouble. Specifically, the trouble
comes from overfishing,\15\ coastal development and habitat loss,\16\
runoff \17\ and point source pollution \18\ and climate change.\19\ In
a larger sense, however, the trouble comes primarily from our inability
to make prudent decisions for the future in the face of uncertainty
today. We have treated our oceans as an infinite resource, and now we
must face the incontrovertible proof that we are devastating a finite
one.
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\15\ In 2001, the U.S. Government could only assure that 22 percent
of fish stocks under federal management (211 of 959 stocks) were being
fished sustainably (NMFS, 2002). New England cod, haddock, and
yellowtail flounder reached historic lows by 1989. Atlantic halibut are
commercially extinct in U.S. waters, and populations of some rockfish
species have dropped to less than 10 percent of their historic levels.
(MacCall and He, 2002). A recent study in Science reports that highly
migratory species of sharks, including blue, thresher and hammerhead
sharks, have declined by as much as 60-90% in the northwestern Atlantic
since 1986.
\16\ More than one fourth of all the land converted from rural to
suburban or urban uses since the time of European settlement of the
United States occurred during the 15 year period between 1982 and 1997
(the last year for which figures are available) (NRI, 2000).
\17\ More than 13,000 beaches were closed or under pollution
advisories in 2001 (NRDC 2002), and a recent National Academy of
Sciences study estimates that the oil runoff from land-based sources is
equal to an Exxon Valdez oil spill--10.9 million gallons--every eight
months (NRC 2002).
\18\ In the U.S., animal feeding operations produce about three
times the amount of sewage produced by the human population. Despite
this, only 15% of all animal feeding operations have Clean Water Act
permits to operate (EPA 2002). In one week a typical 3,000 passenger
cruise ship generates about 1 million gallons of graywater (water from
shower, laundries and dishwashing), which is exempt from the Clean
Water Act.
\19\ Global air temperature is expected to warm by 2.5 to 10.4
degrees F in the 21st century, affecting sea-surface temperatures and
raising the global sea level by 4 to 35 inches (Intergovernmental Panel
on Climate Change, 2001).
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The environmental community noted in 1998 that the concept
``precautionary principle'' did not exist at the time UNCLOS was
negotiated, and that consequently the term did not appear in the
Convention. However, we urged then and TOC urges now that the United
States play a leadership role in future Convention amendments to ensure
the appropriate application of this principle to guide decision-making.
Fortunately, the Convention, as a constitution, does establish some
principles and tools that may provide a framework for future
application of the precautionary approach.\20\ Moreover, subsequent
multilateral agreements related to UNCLOS do include use of the
precautionary principle, including the Straddling Stocks Agreement.\21\
We therefore believe this approach is compatible with UNCLOS and urge
the United States to work to ensure that subsequent changes to UNCLOS
appropriately utilize the precautionary approach.
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\20\ These principles and tools may include environmental impact
assessment and monitoring requirements, caution in the introduction of
new technologies and new or alien species, and the establishment of
critical habitat for marine life. The definition of pollution, which
includes harm to living resources and marine life, is also
complimentary to precautionary approaches.
\21\ The Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea Relating to the
Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks (1995).
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B. Fisheries Conservation Measures
Part V of UNCLOS established the regime of the EEZ, the 200-mile
area wherein coastal states have sovereign rights to explore and
exploit, as well as to conserve and manage, their marine resources. The
Convention recognizes the authority of the coastal state over the
exploitation of living resources in its EEZ, yet qualifies this right
by the overarching duty in the Convention to protect the marine
environment.
UNCLOS adopts as a goal of management in Article 61(3) the Maximum
Sustainable Yield, qualified by environmental and economic factors.
There is some concern that harvest rates based on MSY do not take
natural variability and scientific uncertainty sufficiently into
account. At the time UNCLOS was negotiated, many fisheries were still
expanding. As more and more fisheries become overexploited, it is clear
that using MSY as a management target very often results in overfishing
and depletion. Optimum fishing effort for sustainable exploitation must
now be below or well below the level of effort corresponding to MSY,
according to the U.N. Food and Agricultural Organization.
However, an even larger problem is in the failure of implementation
to ensure accuracy in reporting, transparency and enforcement. TOC
urges the United States to take a leadership role through UNCLOS and
other treaties to ensure better implementation and enforcement of fish
conservation measures.
In particular, UNCLOS did not resolve major issues regarding the
management, exploitation and conservation of living marine resources,
particularly the highly migratory species of fish and populations of
fish that straddled the boundaries between EEZs or between EEZs and the
high seas. The Convention's provisions related to straddling stocks and
highly migratory fish stocks are extremely general.\22\ The failure of
governments and fishing industry to deal effectively with these species
has led to widespread overfishing and conflicts between nations. Today
several straddling and highly migratory fish stocks are in a state of
collapse.
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\22\ They require nations only to ``seek . . . to agree upon the
measures necessary'' for cooperation (straddling stocks) and to
``cooperate . . . with a view to ensuring conservation'' (highly
migratory species).
---------------------------------------------------------------------------
Recognizing UNCLOS's limitations for addressing these species,
further environmental agreements have been negotiated and signed by the
United States.
The U.N. Fish Stocks Agreement was negotiated to address some of
the deficiencies of UNCLOS by elaborating on the duties of states to
manage and conserve straddling and highly migratory fish stocks and
ecologically related species. The Agreement's provisions are
enforceable through the Convention's dispute resolution system, thus
reinforcing enforcement and compliance opportunities for state parties
to the Convention. The U.N. Fish Stocks Agreement has provided the
basis to revise existing regional management agreements in the central
and western Pacific and in the eastern Pacific Ocean. These regional
management agreements are key to undertaking further reforms in
relation to such critical issues as overcapacity, overfishing and
unacceptable fishing practices that have contributed so greatly to the
current fish crisis.
We mention them in our testimony to note that the United States has
already taken leadership in the negotiation of improvements to UNCLOS
and should continue to do so in the future.\23\ The majority of highly
migratory fish stocks lack the precautionary, transparent management
programs dictated by the Straddling Stocks Agreement while shark and
ray populations have no international fishery management measures
whatsoever. To halt the decline of sharks and safeguard other migratory
species, the U.S. must work after accession for the further progressive
development of international law.
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\23\ Other recent positive actions by the United States include
efforts to promote a United Nations General Assembly Resolution to stop
the practice of finning, the wasteful practice of slicing a shark's
fins off while at sea while discarding the rest of the shark.
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iv. conclusion
In conclusion, we strongly support U.S. accession to the
Convention. We urge the Committee to develop interpretive language as
necessary in its advice and consent to reconcile UNCLOS provisions with
U.S. statutory law and to preserve the ability of the U.S. to act to
protect and conserve its marine environment. We also urge the Senate to
include report language encouraging the United States to fully commit
to its role as a world leader in advancing environmental protections
for areas where UNCLOS needs further development. It is our hope that
with accession, the United States will lead by example so that we may
protect, maintain and restore our magnificent ocean trust for future
generations.
[Attachment.]
Ratification of the Law of the Sea Must Ensure the Protection of U.S.
Ocean Resources
On October 14 and 21, 2003, the Senate Foreign Relations Committee
will hold hearings on U.S. ratification of the U.N. Convention on the
Law of the Sea. The Convention sets forth the nature and extent of
offshore jurisdictions within national 12-mile territorial seas and
200-mile exclusive economic zones (EEZ), and preserves the rights of
navigation and overflight in these areas and international straits. The
Convention also contains provisions that are highly protective of the
marine environment. However, due to concerns over its deep-seabed
mining provisions, the U.S. never signed or ratified the Convention.
Nevertheless, the Convention entered into force in 1994 and is
generally regarded as customary international law.
The Convention has much to recommend it, and should be ratified.
However, in certain cases ratification may be used to frustrate the
enactment and enforcement of U.S. environmental, health and safety
laws. To minimize the risks to domestic laws from ambiguous or
inconsistent provisions in the Convention, certain questions need to be
addressed by the Committee (noted below), and an interpretative
statement should be included by the Senate as part of its Advice and
Consent. This interpretative statement should support the authority of
the states and the federal government to prescribe and enforce laws to
protect health, safety and the environment in the U.S., its territorial
waters and its EEZ, including those laws with provisions more stringent
than international standards when the U.S. deems it appropriate. The
Senate's interpretations should be submitted as understandings when the
U.S. submits its instruments of ratification.
law of the sea and the protection of the marine environment
Today, nearly 140 nations have ratified the Law of the Sea
Convention. The U.S. should also ratify the Convention because of
provisions that protect the marine environment.
The Convention establishes duties for all nations to
conserve living marine resources in the high seas (Article
117), and conserve and maintain fish stocks within nations'
200-mile EEZs (Article 61).
The Convention calls on nations to ensure the conservation
of fish stocks that straddle national EEZs (Article 63), and
highly migratory fish species and marine mammals that traverse
the high seas (Article 64).
The Convention establishes duties for all nations to protect
the marine environment from pollution from vessel dumping, sea-
based activities and land-based sources (Articles 192-236).
potential conflicts with domestic laws
While the Convention should be ratified, the potential effects that
ratification may have on U.S. health, safety and environmental laws
must not be ignored. These are more than hypothetical concerns. In U.S.
v. Royal Caribbean Cruises, Ltd, 11 F. Supp.2d 1358 (S.D. Florida,
1998), Royal Caribbean Cruise Lines argued that the Convention shielded
it from prosecution under the False Statements Act for presenting
fabricated oil record books to the Coast Guard. Royal Caribbean argued
that under the Convention the right to regulate pollution from ships
belongs to the flag state (Liberia in this case) and not the U.S.,
regardless of whether the discharge occurred within or outside the U.S.
EEZ. The U.S. District Court disagreed and found that Royal Caribbean
could be prosecuted. However, the case illustrates how the Convention
could be used before ratification to attempt to avoid prosecution of
U.S. health, safety and environmental laws.
It is therefore prudent for the Senate as part of its Advice and
Consent to include interpretations of pertinent provisions of the
Convention to support the authority of the states and the federal
government to prescribe and enforce laws to protect health, safety and
the environment in the U.S., its territorial waters and its EEZ,
including laws with provisions more stringent than generally accepted
international standards. These interpretations should be submitted as
understandings when the U.S. submits its instrument of ratification.
Because adoption of the Convention will be ``self-executing,'' it may
be argued that certain international standards and/or provisions of the
Convention take precedence over U.S. laws. This raises a number of
questions that need to be addressed:
Do Articles 21, 211 and 196 allow the U.S. to adequately
control the discharge of ballast water from vessels that
contain dangerous diseases, bacteria and species that endanger
domestic species and impose tremendous economic costs?
Would Article 230, which restricts criminal penalties for
violating anti-pollution laws to monetary damages, impede the
full and effective enforcement of U.S. laws?
Could Article 33 impede the enforcement of laws to prevent
the contamination of fish or the impairment of air quality from
vessel emissions?
Could the Convention's dispute resolution procedures be used
to challenge U.S. trade measures under the Pelly Amendment, the
Endangered Species Act and other laws to protect species such
as sea turtles and dolphins from destructive fishing practices?
Could Article 226 interfere with the inspection of vessel
discharges, hull coatings and equipment to determine if they
are harming the marine environment?
Could Articles 21 and 211 limit U.S. laws to prevent
pollution from foreign ships if those laws exceeded ``generally
accepted international rules or standards''?
Would the Convention affect the ability of the U.S. to
protect its coast from an environmental disaster like the
sinking of the Prestige, a foreign-flagged single-hulled tanker
carrying twice the oil of the Exxon Valdez that went down 150
miles off the coast of Spain in November 2002?
If the answers to these questions are yes, ratification of the
Convention might result in unintended consequences unless an official
U.S. interpretation clarifies that ratification would not prevent the
U.S. from prescribing and enforcing more stringent standards. For
example, we are concerned that absent clarifying language, an argument
could be made that prevents the U.S. from stopping a foreign-flagged
cruise ship from dumping wastes into U.S. waters that violates the
Clean Water Act so long as it meets weaker international standards;
prevents the U.S. from stopping the dumping into U.S. waters of ballast
water that contains invasive species, bacteria or diseases that harm
marine resources; or prevents U.S. officials from inspecting equipment
on a ship that has been discharging harmful or toxic wastes on the
theory that the Convention limits inspections to certificates or other
documents carried by the vessel.
The Chairman. Thank you very much, Admiral, for that very
important perspective. The committee looks forward to working
with you and your associates on necessary language.
Admiral Rufe. Thank you, sir.
The Chairman. Ms. Thomas.
STATEMENT OF MS. RANDI THOMAS, NATIONAL REPRESENTATIVE, U.S.
TUNA FOUNDATION, WASHINGTON, DC
Ms. Thomas. Thank you, Mr. Chairman. I first want to say
that David Burney was to give this testimony today, and his
statement is included in what we have sent forward, but I will
summarize his remarks.
The Chairman. Thank you.
Ms. Thomas. I wanted to tell you about the U.S. Tuna
Foundation. It is a nonprofit trade association representing
the legislative and international affairs of the U.S. canned
tuna industry. Our membership includes all U.S. canned tuna
processors and all of the U.S. flag, distant water tuna purse
seine vessel owners.
The U.S. tuna industry supports the accession of the United
States to the Law of the Sea. We consider this hearing to be
directly relevant to our industry since the conservation and
management of the highly migratory tuna resources is closely
tied to the relevant provisions of the convention. Not all fish
stocks are in sad shape, as has recently been reported. As a
matter of fact, most tuna stocks are in a healthy to relatively
good condition. This is due in no small fact to the regional
tuna conservation and management regimes that have been
established in all of the major tuna fisheries in the world.
These regimes include the Inter-American Tropical Tuna
Commission, the International Commission for the Conservation
of Atlantic Tunas, the Indian Ocean Tuna Commission, the newly
developing Western and Central Pacific Fisheries Commission, as
well as the Fisheries Treaty between the U.S. and South Pacific
Island States. We believe the U.S. accession to the UNCLOS will
strengthen our abilities to continue the strong U.S. leadership
positions in the tuna agreements to which the United States is
party.
Article 64 of the UNCLOS has been instrumental in
establishing principles of sound international fisheries
conservation and management. In particular, article 64 has had
an impact on the issues of coastal States' jurisdiction, the
South Pacific Tuna Treaty, the U.N. Fish Stocks Agreement, and
the new Western and Central Pacific Fisheries Commission.
Prior to 1982, the U.S. tuna industry agreed with the U.S.
position not to recognize coastal State jurisdiction over tuna
stocks. The industry had long argued that because tunas
traverse the juridical zones of numerous coastal States, these
stocks could only be managed and conserved through
international cooperation. A coastal State does not own the
highly migratory stocks exclusively. After all, these fish do
not recognize borders.
Unfortunately, the coastal States did claim jurisdiction
and would seize U.S. tuna vessels if they entered their 200-
mile zones. The U.S. policy was coming under increased attack,
especially by Latin and Central American States that believed
they have preferential rights to the resources without the
obligation to provide for the optimum utilization of the
resource throughout its range.
The industry recognized the problem of coastal State
jurisdiction over highly migratory species was not going to go
away. As a result, beginning 1984, a series of meetings
resulted in a precedent-setting fisheries treaty in 1987. This
treaty, commonly referred to as the South Pacific Tuna Treaty,
embodies the spirit and intent of article 64 of UNCLOS.
During the negotiations leading up to the U.N. Fish Stocks
Agreement, the South Pacific Tuna Treaty was referred to as the
model to be followed in establishing a regional cooperative
agreement for highly migratory fish stocks such as tuna. The
Fish Stocks Agreement made it clear that highly migratory fish
stocks can only be effectively managed as a biological unit
throughout their entire range and that there was an obligation
on the part of both the fishing States and the coastal States
to ensure optimum utilization of the resource throughout the
region.
Following the Fish Stocks Agreement, negotiations began for
a new management regime for the western and central Pacific
Ocean. During the negotiations, the South Pacific Tuna Treaty
was again used as a model for many features of this convention.
The commission itself is expected to come into effect in 2004,
thereby creating a worldwide tuna management organization.
The U.S. tuna industry is especially pleased with article 5
of this convention, which follows article 64 of UNCLOS, and
makes clear that members have a duty to conserve and manage
tuna stocks with the objective of optimum utilization.
In summary, we believe article 64 of UNCLOS is being
interpreted as intended. We urge the Senate to move to accept
the Law of the Sea. Thank you.
[The prepared statement of Mr. Burney follows:]
Prepared Statement of David G. Burney, U.S. Tuna Foundation
Mr. Chairman and members of the Senate Foreign Relations Committee,
on behalf of the U.S. Tuna Foundation I want to express our gratitude
for being invited to testify here today on a subject that is very
important to our industry and to the highly migratory fish stocks that
roam the oceans of the world. For those of you not familiar with the
U.S. Tuna Foundation, it is a nonprofit trade association representing
the legislative and international affairs of the U.S. canned tuna
industry. Its members consist of all of the U.S. canned tuna processors
and all of the U.S. flag, distant water tuna purse seine vessel owners.
We consider this hearing to be directly relevant to our industry
since the conservation and management of the highly migratory tuna
resource is closely tied to the relevant provisions of the United
Nations Convention on the Law of the Sea (UNCLOS). The recent horror
stories regarding the current status of the world's fisheries
notwithstanding, most tuna stocks are in a healthy to relatively good
condition. This is due in no small fact to the regional tuna
conservation and management regimes that have been established in all
of the major tuna fisheries of the world.
In 1979, I testified before the Senate Commerce Committee on the
U.S. Tuna Industry's position regarding claims by some countries that
they owned the tuna stocks that were within their exclusive economic
zones (EEZs) and they alone could decide if any management or
conservation was necessary. I stated at the time that I did not know
how you could own something that migrates through your waters. I argued
that highly migratory species of fish such as tuna could not be
effectively managed or conserved in the same manner as standing stocks
of fish. I stated that it was shown that highly migratory tuna traverse
the juridical zones of numerous coastal States as well as high seas
areas beyond coastal State jurisdiction. I concluded that it was our
belief that highly migratory fish stocks such as tuna could only be
effectively managed and conserved through international cooperation.
Interestingly enough, several members of the Committee criticized
me for taking this position. I was told that the U.S. tuna industry had
used the highly migratory nature of the fish as a smoke screen to allow
our distant water fishing vessels to exploit tuna stocks found in the
waters of coastal States who claimed these stocks as their property. I
was even told that my statement misrepresented the highly migratory
nature of tuna.
Prior to December of 1982, when the UNCLOS was signed, the
ownership, management and conservation of highly migratory tuna had
been hotly debated. The United States neither ratified the UNCLOS, nor
recognized the claims of coastal States who declared sovereignty over
the migratory tuna when it was in their juridical zone. The official
U.S. position at that time was that tuna belonged to no one country
because of their migratory nature and they could only be effectively
managed and conserved as a biological unit throughout their entire
range. Needless-to-say we agreed with this position.
The UNCLOS clearly recognized the difference between managing and
conserving standing stocks of fish and highly migratory fish such as
tuna. Article 61 gave the coastal States the right ``to determine the
allowable catch of the living resources in its exclusive economic
zone.'' It went on to obligate the coastal State to ``ensure through
proper conservation and management measures that the maintenance of the
living resources in the exclusive economic zone is not endangered by
over exploitation.'' Many coastal States interpreted Article 61 as
justifying their claim of sovereignty over both standing fish stocks
and highly migratory fish stocks found in their EEZs. We believed that
Article 64 governed the treatment of highly migratory fish stocks, not
Article 61.
Article 64 specifically provides that ``the coastal State and other
States whose nationals fish in the region for the highly migratory
species'' . . . ``shall cooperate directly or through appropriate
international organizations with a view to ensuring conservation and
promoting the objective of optimum utilization of such species
throughout the region, both within and beyond the exclusive economic
zone.'' The coastal States blended the provisions of Article 61 and
Article 64 and argued that together they granted a coastal State
preference over tuna. The distant water fishing States, including the
United States disagreed. They argued that Article 61 and Article 64
were mutually exclusive and international cooperation, not coastal
State preference, was the overriding intent of Article 64.
In the 1990 amendments to the Magnuson Fisheries Conservation and
Management Act (MFCMA), the United States for the first time claimed a
form of coastal State preference over the tuna resource within its EEZ.
The United States claimed the right to regulate the harvest of the
resource found within its EEZ but made it clear that the resource could
only be effectively managed through international cooperation. In
essence, the United States did not want foreign fishing fleets to have
unrestrictive access to the highly migratory tuna stocks found in the
U.S. juridical zone.
Although the 1990 MFCMA amendments declared U.S. jurisdiction over
highly migratory fish stocks within its juridical zone, the United
States continued to maintain that this jurisdiction did not amount to
ownership of the resource. The U.S. position at the time was that
coastal States had an obligation under Article 64 of the UNCLOS to
cooperate directly or through international organizations to ensure
conservation of the resource both within its EEZ and on the high seas.
Additionally, the United States agreed that Article 64 required that
the coastal States also promote the objective of optimum utilization of
the highly migratory resource throughout the region, both within and
beyond claimed juridical zones.
At the time, there were many connected with U.S. fisheries, both in
and out of government, who believed this would be the demise of the
U.S. high seas tuna fleet. It is true that the U.S. tuna industry had
supported the earlier position of the United States, when they did not
recognize any coastal State preference or jurisdiction over the
resource. However, the industry also recognized that this earlier U.S.
position had been considered confrontational by many coastal States and
had led to the costly seizure and detention of U.S. tuna vessels when
they were found fishing within the foreign juridical zones.
The penalties paid to the coastal States to get these seized
vessels released had escalated significantly during the early to mid
1980s because of the U.S. non-recognition policy. The increased
penalties were principally due to the increasing awareness of the
coastal States that the penalties were in fact paid by the U.S.
government under a program entitled the Fisherman's Protective Act.
This did not mean, however, that the U.S. high seas tuna fleet was not
impacted by the seizures. Lost fishing time and vessel deterioration
during the detention period often resulted in substantial cost to the
vessel owner.
The U.S. tuna industry never opposed or denied the need for
effective tuna conservation and management programs. In fact, the
industry was instrumental in the establishment of the first
international tuna management organization, the Inter-American Tropical
Tuna Commission, in 1945. This organization has effectively managed
tuna in the eastern tropical Pacific Ocean since its inception and
operates on the basis of the international cooperation envisioned in
Article 64 of the UNCLOS.
It is true, that prior to the MFCMA amendments of 1990, the U.S.
tuna industry did oppose the extended fisheries jurisdiction claims by
most coastal States. The industry firmly believed that tuna could not
be managed on a piece-meal basis and saw most coastal State preference
claims as being nothing more than an effort to deny access to distant
water fishing fleets. However, in the early and mid 1980s the industry
realized that the U.S. government's tuna policy was coming under
serious attack by the coastal States and representatives of the U.S.
government. Some U.S. government officials even expressed the belief
that the U.S. high seas tuna fleet was becoming a U.S. foreign policy
nightmare.
As a result, beginning in 1984, representatives of the U.S. tuna
industry initiated meetings with officials of several south Pacific
Island States located adjacent to a very productive tuna fishery in the
western and central Pacific Ocean. The purpose of the meetings was to
explore the possibility of creating a regional access arrangement for
the U.S. high seas tuna fleet, which up until this time had been
operating primarily in the eastern tropical Pacific off of Central
America. It had become clear to industry leaders that the Latin
American coastal States viewed Article 64 as a one-way street--coastal
States had preferential rights over tuna within their juridical zones
and there was no concurrent duty or obligation to provide for the
optimum utilization of the resource throughout the region.
From 1985 to 1987, the U.S. tuna industry, working cooperatively
with the U.S. government, continued to pursue a regional tuna access
arrangement in the western and central Pacific Ocean region. In 1987,
this effort resulted in a precedent setting fisheries treaty between
the United States and the sixteen Pacific Island States that comprise
the western and central Pacific region (the Tuna Treaty). It was, and
is, our opinion, that this treaty embodies the spirit and intent of
Article 64 of the UNCLOS.
The Tuna Treaty created a licensing regime over an area that
covered some 10 million nautical miles including the high seas and the
juridical zones of the coastal States in the region. The Tuna Treaty
recognized coastal State jurisdiction over tuna within their juridical
zones but also acknowledged the obligation of the coastal States to
cooperate with other States whose nationals fish in the region to
ensure conservation of the resource and promote the objective of
optimum utilization of the resource throughout the region. In essence,
the Tuna Treaty was built on the provisions of Article 64 of the
UNCLOS. The Tuna Treaty has been in effect since 1987, and was recently
extended for an additional ten years commencing in 2003.
During the negotiations leading up to the 1995 U.N. Agreement for
the Implementation of the Provisions of the UNCLOS relating to the
Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks (the 1995 Agreement), the Tuna Treaty was
referred to often as the model to be followed in establishing a
regional management regime for highly migratory fish stocks such as
tuna. The 1995 Agreement made it clear that highly migratory fish
stocks can only be effectively managed as a biological unit throughout
their entire range and that there was an obligation on the part of both
the fishing States and the coastal States to ensure the optimum
utilization of the resource throughout the region.
The parties to the 1995 Agreement were able to agree on a rational
and effective set of management principles for highly migratory fish
stocks. After lengthy debate, it became the consensus of the parties
that highly migratory fish stocks such as tuna cannot be effectively
managed if different management principles are promulgated by coastal
States for their juridical zones and by international agreement for the
high seas area. It was agreed that the management measures must be
designed for the entire range of the highly migratory resource.
Finally, Article 64 was getting the recognition it deserved.
Subsequent to the 1995 Agreement being adopted negotiations were
commenced to establish an international tuna management regime for the
western and central Pacific Ocean. In 2000, this effort culminated in
the signing of the Convention on the Conservation and Management of
Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
(the Convention). Again, during the negotiations leading up to the
signing of this Convention, the Tuna Treaty was used liberally as a
model for the management provisions that were included in the final
work product. Of particular satisfaction to the U.S. tuna industry was
the wording of Article 5 of the Convention dealing with the principles
and measures for conservation and management. The pertinent language
reads:
In order to conserve and manage highly migratory fish stocks
in the Convention Area in their entirety, the members of the
Commission shall, in giving effect to their duty to cooperate
in accordance with the 1982 Convention, the Agreement and this
Convention:
(a) adopt measures to ensure long-term sustainability
of highly migratory fish stocks in the Convention Area
and promote the objective of their optimum utilization.
(emphasis added)
In summary, it has taken a long time and many debates but finally
Article 64 of the UNCLOS is being interpreted as intended. The U.S.
tuna industry can find no fault with the fisheries application of the
1982 UNCLOS, the 1995 Agreement or the 2000 Convention. They have
collectively ensured that the principles of effective management and
optimum utilization of important highly migratory fish stocks can work
in harmony.
The Chairman. Well, thank you very much, Ms. Thomas.
I look forward now to hearing from you, Mr. Cox, on behalf
of the Chamber of Shipping of America.
STATEMENT OF JOSEPH J. COX, PRESIDENT AND CEO, CHAMBER OF
SHIPPING OF AMERICA, WASHINGTON, DC
Mr. Cox. Good morning, Mr. Chairman, and thank you. I know
my statement is in the record. However, sir, I did notice this
morning that there are two typographical errors. I am one of
the world's worst proofreaders, so lest your staff take the
blame for it, I am going to say it in public here that it is my
fault and I will give the changes to your staff.
The Chairman. We will make those changes with your
cooperation.
Mr. Cox. Thank you very much.
The Chamber of Shipping of America does trace its history
back quite a bit, Mr. Chairman, to the early 1900s when we were
formed in response to the British request for a Convention on
Safety of Life at Sea and the American ship owners decided that
we should be active on the U.S. delegation that was called for
that particular convention treaty in 1914. We were very active
then and I can assure you we have been very active on many
maritime conventions that have been deliberated internationally
since.
You have heard much testimony that this is a framework
convention that we are talking about today. We certainly
support the ratification of this convention. The United States
exercised a great deal of leadership in this convention. We
noted that U.S. leadership in our testimony, and I noted this
morning that Admiral Mullen talked about the United States
leadership in the maritime field, and I am sure he was
reflecting the military aspects. I can assure you that from the
commercial aspects the United States has exercised just as
great a leadership as we have in the military framework.
Sir, I am going to comment on three aspects. We also heard
this morning that Admiral Crowley from the Coast Guard referred
to the environmental aspects of the Law of the Sea Treaty as it
impacts our industry. Certainly it has been a very great impact
and a very beneficial impact around the world to have
international treaties dealing with environmental protection.
The Maritime Pollution Convention, which he referred to, which
we call MARPOL, does control oil and chemical and plastics
pollution, to a great extent, and I think to a very large
extent, that was reflected by the U.S. leadership at that
convention.
We note, as the Chamber of Shipping, that we have been very
active in development of an annex to the MARPOL treaty dealing
with air pollution that we know is going to be coming up before
you. It is a very important annex. Sitting here this morning
thinking about it, Mr. Chairman, there is a reflection on that
that is very similar to the Law of the Sea, and that is that
annex VI is going to come into force. It is going to be
immediately put up for amendment in the way of tightening all
the requirements, and we in the American industry support that
tightening. However, we do not have a seat at the table unless
we ratify it. So it is very similar to the Law of the Sea
Treaty in that regard. So we certainly look forward to your
consideration of that treaty when it comes up.
With respect to the Law of the Sea, we are extremely
concerned with freedom of navigation issues, and I will connect
that with a couple of incidents that have occurred very
recently that we have participated in, the first one being that
a vessel got into a little bit of trouble off of a European
coast, and two of the States actually went out and, through
force, forced the vessel out of their exclusive economic zone.
Now, nations certainly have a sovereign responsibility to their
people to protect their coasts, but when we deal with the
international maritime community and the freedom of navigation,
those rights have to be exercised with respect to international
law.
We wrote to Secretary Powell with our deep concern that
those nations were, indeed, violating not just customary law of
the sea, but also the explicit requirements in the Law of the
Sea Treaty.
As I sat here this morning thinking about this part of my
testimony, it also came to my mind that--and it is not in my
written testimony and I apologize for that, but the issue of
piracy. In the year 2002, which is the most recent year we have
statistics for, there were 372 acts of piracy, reported piracy,
in the world. A lot of that is in archipelagic seaways where
people can come from shore very quickly.
As we were debating the International Ship and Port
Facilities Security Code last year--and the chamber was on the
U.S. delegation and participated very deeply in that--we had
much security concern with small boats coming up against large
vessels. I think the French tanker Limberg showed us that a
small boat can come up and do incredible damage to a large
ship, not only to the ship itself and an economic burden there,
but also an economic burden to the coastal State where that oil
is going to be coming ashore.
So certainly there has to be some way that we deal with
piracy issues which are small boats coming up and how does a
master know what is going to take place. I think the connection
with the Law of the Sea is we have to start putting pressure on
those coastal States that by dint of no action are actually
encouraging piracy to take place, and terrorism hidden as a
piracy act is certainly something that I think we have to
foresee.
The second area where I have some major concerns--and this
is involved with the freedom of navigation--is at a recent
meeting of the Marine Environment Protection Committee of the
IMO, two States suggested that there be a particularly
sensitive sea area declared in western Europe. Now, we
recognize my friend sitting beside me here. I work with Roger
and the Conservancy quite a bit on issues, but to suggest that
the entire North Sea, the entire English Channel, the entire
Irish Sea, 200 miles of waterways out to the west of Ireland
and 200 miles off the coast of Portugal and Spain, all the way
down to the Straits of Gibraltar are a particularly sensitive
sea area that is in need of specific protection we think is a
stretching of the traditional way that we would look at
particularly sensitive sea areas. Certainly those two countries
moving vessels off of their coasts and countries declaring
enormous areas where there are going to be restrictions placed
on shipping are two things that we see coming down the road
that we think the United States is going to have to exercise
its maritime leadership. And certainly ratification of the Law
of the Sea would be beneficial in that regard.
Mr. Chairman, I thank you very much for this opportunity
and certainly would be pleased to respond to any questions.
[The prepared statement of Mr. Cox follows:]
Prepared Statement of Joseph J. Cox, President and CEO, Chamber of
Shipping of America
Thank you Mr. Chairman and committee members. The Chamber of
Shipping of America is very pleased to testify before your committee
today concerning U.S. ratification of the U.N. Convention on the Law of
the Sea. We realize that you have heard testimony in support of
ratification. We are very pleased to add the Chamber of Shipping of
America (CSA) to the support column.
The Chamber of Shipping of America represents 22 American owners
and operators of ocean-going vessels. Our members operate both U.S. and
foreign-flag ships in the domestic and international trades. While we
have undergone a number of name changes over the years, CSA proudly
traces its founding to 1914 when the British Government invited a small
group of countries to develop the first international treaty regarding
safety at sea. The American ship owners were involved in that first
maritime treaty. It was prompted by a legendary incident--the sinking
of the steamship--Titanic. While that treaty failed due to World War I,
it plotted the course of future maritime treaties. Today, the safety,
security and protection of the environment are all subjects of maritime
treaties. World War I blocked the first try at a safety treaty although
it led directly to development of treaties covering maritime labor
conditions which are developed at the International Labor Organization
(ILO). The ILO exists today under the U.N. umbrella although it was
founded in 1919 as part of the League of Nations which was the brain-
child of our President Woodrow Wilson.
Mr. Chairman and members, today we consider the Law of the Sea
Treaty. It has been referred to as the fundamental framework governing
obligations and rights of states; flag states, coastal states, and port
states. Viewing it in conjunction with the many other maritime
conventions shows the detailed interest the world has in the maritime
industry. An import aspect of that interest is that shown by the United
States. From 1914 through today, we do not know of any maritime
treaties developed in any fora that did not have the active involvement
of the United States. Indeed, many of the conventions, particularly
those addressing environmental concerns, were undertaken at the urging
of and subsequent leadership of the United States. Because the Law of
the Sea Convention provides the framework for the protection of the
environment, we feel comfortable in identifying another treaty that has
been forwarded to your committee by the Administration, i.e., Annex VI
of the Convention to Prevent Pollution from Ships. Annex VI of this
convention covers the issue of air pollution from ships. It will soon
be ratified by the requisite number of states to bring it into force.
As with the Law of the Sea further development of Annex VI requires
ratification. The U.S. led the effort on development of Annex VI. All
of us recognize, and by all, we mean private sector and government,
that Annex VI is not perfect although, if we wait for the perfect, we
can be waiting a long time. We look forward to your positive
consideration of Annex VI and the U.S. involvement in the continuing
strengthening of this very important environmental measure.
The Law of the Sea, Annex VI of the pollution treaty and the newly
adopted amendments to the safety of life at sea treaty dealing with
security involve vital U.S. interests. The world looks to our
leadership in these matters. We must respond, and respond vigorously
and positively, to that expectation. The credibility of the U.S. in
international fora where these agreements are made depends on it.
There are reasons why the U.S. benefits from a ratification of this
treaty. It provides the framework for the essential concepts of freedom
of navigation. The origination of the process leading to the treaty was
occasioned by states exercising sovereignty in waters where the legal
basis of that sovereignty was questionable to put it kindly. In recent
months, we in the maritime industry saw states take action to forcibly
remove a ship from their exclusive economic zone. It was reliably
reported that the ship Prestige, listing and in imminent danger, was
forced to go further out to sea under extremely dangerous conditions.
We considered this very important and wrote to Secretary of State,
Colin Powell expressing our grave concern. Nations can claim to
interpret the law of sea. Those claims, unless challenged can stand.
The Law of the Sea Tribunal is the appropriate place to adjudicate
those claims and we want the U.S. to be able to participate and that
requires ratification.
Protection of the crew is also a vital component of the treaty. The
Master of the Prestige, after taking heroic steps to save his ship, was
imprisoned by coastal state authorities when the all-too-predictable
pollution occurred. After months of captivity, he was freed on bail
that the press reported at over three million dollars. Once again, a
step which CSA believes conflicts with provisions of the treaty.
Mr. Chairman, and members of the committee, these are not
theoretical concepts or law school questions. These are topical
circumstances involving developed nations. We must rely on our nation
to call these actions to account. The U.S. should place itself in a
position to be the effective force for adherence to treaty obligations
by all. The only way we can do that is by ratifying the treaty. It is
certainly unfortunate that states have taken dramatic action to control
ships' off their coasts. It is also a measure of ``deja vu'' as similar
actions led to the initiative of the law of the sea to begin with!
We also have to be vigilant concerning recent actions which are
purported by their adherents to be in concert with the law of the sea.
Under the framework of the law of the sea, the International Maritime
Organization (IMO) developed the concept of ``particularly sensitive
sea areas'' or PSSAs. These are areas which a state can declare as
eligible for special protection. At the July meeting of the Marine
Environment Protection Committee, it was determined that the entire sea
area off Western Europe from the upper reaches of the English Channel
to the Straits of Gibraltar were a particularly sensitive sea area.
While the area was determined to be a PSSA, steps were not adopted to
protect the area. The steps will be discussed at an upcoming meeting of
the Marine Environment Protection Committee of IMO. We will be involved
in these deliberations and believe that any measure is inappropriate.
It is clear that states are beginning to feel comport in stretching the
interpretations of the law of the sea into unrecognizable forms. It is
time the U.S. decided that such antics are unacceptable.
The Chairman. Well, thank you very much, Mr. Cox.
Let me just say parenthetically that one of the reasons for
our committee's interest in this area, given longtime work of
so many before us, is this business of maritime leadership and
the need to be at the table, particularly at a time in which
the amending process is coming up next year and in which there
may be others who will be offering leadership, hopefully
constructive, but nevertheless important enough for us to be
offering our leadership and to be thoughtful about their
suggestions.
In a much more dire set of circumstances, probably not
covered by the treaty, but of interest to many people with whom
I have been working, there has been a problem left over from
the cold war, and that is the problem of submarines that were
first created by the Soviet Union. They have now been inherited
by Russia. They are not abandoned, as far as we know, but on
the other hand, they are in dire straits.
One of the interesting aspects of the G-8 process is that
they are taking a look at weapons of mass destruction and
things that they may do in cooperative efforts with Russia on
the nuclear cores of these submarines. There has been suspicion
in the past that some of that material may have gotten into the
seas in any event. It is very clear, looking at 150 submarines
at the Nerpa shipyard near Murmansk, that a good many more
might disappear or leak into the sea without there being very
substantial intervention. To say the least, leadership on the
part of a lot of people is going to be required so that there
is not a massive danger to the seas that could last for some
time and be of catastrophic import.
I appreciate your mention that there are issues that go
well beyond those we have discussed today in terms of national
security, the environment, the commercial rights and
privileges.
I just want to follow up partially for my own curiosity, as
well as for the committee record. I was intrigued, Mr. Kelly,
by your statement in your testimony that world oil demand in
2001 was 76.9 million barrels per day. You mentioned by 2025,
sort of 24 years down the trail, that that may be 119 million
barrels per day, based upon the development of the economies of
various countries that have much greater energy needs.
Without knowing all of the shipping aspects, on the vessels
that will carry that energy, it does strike any observer that
it is going to be a whole lot more than whatever the dangers
are with regard to oil spills or other difficulties at the 76.9
figure. At 119 they are increased. I am just, I suppose,
hopeful--and perhaps that is the dint of your testimony on that
page--that one of the reasons for the Convention, for all the
parties being around the table rather continuously, is that the
amount of activity and the potential for very severe difficulty
is likely to increase not only incrementally but actually
rather dramatically in this period.
Could you amplify at all the point that you made here?
Mr. Kelly. Well, Mr. Chairman, you have put your finger on
a very important point. If one looks at the rising economies of
China and India just alone, India has been in the news recently
for its rapidly growing economy, which everyone is happy to
see. We have been hearing about economic growth in China. And
if you just look at the population growth projections in both
countries, we see in both those countries rising levels of
expectations on the part of the populations. They want
mobility. So we are going to see increasing demand for
petroleum products to give them increased mobility.
Another thing that many people do not realize is that
energy is behind the Internet, and as both those countries have
rapidly growing Internet participation and that, with the
desire to stay warm in the wintertime, is going to be driving
the demand for electricity, which in turn will drive increased
demand for oil and natural gas.
The point you make is a very good one, as we live in a
world with these kind of developments, our leaders should be in
a position to make adjustments as they go along to adopt what
we might call adaptive management, which is used in business
these days. And being a party to this convention and being a
player at the various meetings I think is very important so
that those adjustments can be made.
The Chairman. Well, I thank you for that testimony.
Obviously, your business is involved with petroleum drilling
and what have you. If we had other witnesses, perhaps they
could suggest fuel cells or hydrogen or other ways in which the
energy may be met. On the other hand, those suggestions have
been coming for a long time, and the amount of oil that has
been required seems to have increased through each year of
hearings on the subject. That is why I was intrigued by the
straight lines you were drawing into the future there.
Mr. Kelly. Yes. All these alternate sources of energy are
coming, but I think these projections include assumptions with
respect to how much alternatives can contribute. I think that
when it is all said and done for the next 25 years, we are
still going to be highly dependent on fossil fuels.
You know, another comment I was going to make, the comments
by Admiral Rufe and Mr. Cox and yourself reminded me of the
importance of the fact that the Law of the Sea Convention
recognizes the leadership of the International Maritime
Organization, IMO, on environmental and safety issues. I had
the privilege of serving as an advisor to the U.S. delegation
to IMO in London during the mid-1980s when I was resident in
London managing my company's North Sea operations. When you
look at the accomplishments of IMO, it should give one great
satisfaction that maritime safety and environmental protection
is really given careful consideration. Over the years, IMO has
dealt with issues like invasive species, port security,
pollution from vessels, safety of life, and annex VI to MARPOL
that Mr. Cox mentioned is an example of this. It deals with air
pollution from vessels, and my group of companies supports
ratification of that as well.
But IMO has taken such initiatives as to develop a safety
code for the whole class of vessels in our industry, a safety
code for mobil offshore drilling rigs by themselves which
requires companies that own them to follow very specific safety
and environmental standards. And I think that such codes have
been applied to other vessels as well.
Moreover, the United States Coast Guard, working with the
State Department, has provided excellent leadership for the
United States at all these meetings of IMO, and I know they
will continue to do that in the future. And ratification of the
convention gives us even more standing to do that.
The Chairman. Thank you, Mr. Kelly.
Admiral, you mentioned, quite appropriately, in addition to
The Ocean Conservancy, the Pew Foundation which has offered
leadership in this area. I really commend both for helping. A
group of Members of the House and Senate met under the auspices
of the Aspen Institute in a conference in Rome this summer. The
purpose of the conference was really to take a look at the seas
in terms of conservation of fish and fishing resources
essentially. One of the large studies that was presented to us
showed that unlike tuna that Ms. Thomas has mentioned, a good
number of other species have disappeared in fairly large areas.
Now, they reappear given proper management of the situation,
but that is sometimes difficult to undertake without there
being specific international cooperation that can govern fleets
of fishing vessels or the ambitions of particular groups of
people who understandably want the fish, but at the same time,
sort of drive the population close to zero in some cases.
We looked carefully at national security this morning. We
also considered some way of adjudicating disputes or, long
before that, bringing about cooperation among commercial
interests. Clearly at the heart of the value of this convention
is conservation of the resources of the seas that are our
collective heritage and that many persons in that area have
found can be maintained doing vigorous fishing. In the event
that we are not thoughtful about this, we could, in fact,
substantially depleted some of the nutritional resources of the
world at a time when our populations are still increasing.
When you speak of the precautionary principle, to what
extent is this reflected in the convention now? To what extent
should it be reflected, or can you amplify what we ought to do
with regard to that?
Admiral Rufe. Thank you, Mr. Chairman. Yes, thanks for your
comments there.
The concern that we have is that the U.S. EEZ is the
largest EEZ in the world. It is 20 percent larger than our U.S.
land mass. It is the largest public resource that we own, and
it is all in the public domain. None of it is privately held.
And it is a rich resource that is held in trust for all
Americans.
What the precautionary principle says is that in the
absence of sound or final scientific information, that you
should always err on the side of precaution rather than on
exploitation. That is not covered in the convention currently.
We think it is an accepted principle now internationally. It is
certainly accepted, I think, in the U.S. in science and in
conservation circles, but it often is ignored in the way we
manage our fish stocks, as an example. We think that it ought
to be part of the convention. We also think that the convention
speaks to terms like generally accepted international rules and
standards, that in the absence of those standards, that the
U.S. not be precluded or restricted from taking unilateral
action to protect our marine environment, our own marine
resources, and using the precautionary principle in that
context.
The Chairman. Now, just in a technical sense, on the
precautionary principle--as well as--the second idea that you
presented--are these ideas that can be made a part of our
accession? or are these in the form of amendments that after we
have acceded to the treaty, if we are members next year when we
get together around the table, we offer? What advice can you
give us technically on this?
Admiral Rufe. I would say, Mr. Chairman, do both. I think
at least initially in the accession process, I think many of
the things that we mention in our full written comments talk
about the precautionary principle, as well as some other
things, they should all be made part of the record I think as
far as stating the U.S. position. But far stronger certainly is
to have the official amendment adopted and accepted by all
other countries. I actually think that the precautionary
principle would be one that most countries would agree to and
would be a good effort I think in terms of a strong amendment
subsequently to the convention.
The Chairman. Did you have a thought about that, Mr. Cox?
Mr. Cox. Thank you, Mr. Chairman. Thank you for recognizing
me.
Certainly we, I cannot say, agree with the precautionary
principle because I do not think it is defined in such a way
that you could read it and say I agree with that or disagree
with it. We agree with the principle that you do not have to
have definitive scientific proof before you take some action to
try and alleviate a problem. But there should be some
connection, and I think that is where we get into some
disagreements with our colleagues in the environmental
movement. Just how direct is that connection going to be and
what would it mean?
Certainly the actions we take, particularly if they are
going to have a large economic impact on an industry or on a
people in a particular society, should be taken with some
understanding that there is the potential for something
positive coming out and not just taking the action because we
think it might have some effect.
But these are activities where Roger and I certainly sit
down across a table and have at it and discuss and come to some
resolution. I think that to actually try and put this into
writing in an international instrument at this moment could be
done on a principle basis, but I think in a specific line basis
where we could look at it and say, yes, that is what we agree
to and all future actions will be predicated on that line, I do
not think we are quite there yet.
The Chairman. Well, I appreciate your mentioning that. I
would encourage some movement to see if there is not some
reconciliation of the views. I suppose that there has not been
that much opportunity for discussion because, as was pointed
out at the last hearing, neither this committee nor any other
committee that I know of has considered the Law of the Sea for
9 years. It was only considered at that point 9 years ago
because we at least got our way in terms of the seabed
negotiations. The presumption was that that would lead to the
United States becoming a party. That was a forgone conclusion.
Having missed that opportunity, why, things foundered
subsequently.
In any event, why, now this is sort of back on the table.
My hope is that conceivably, we can have, even within all of
our parties here in the United States, a considerable degree of
thoughtful compromise and movement.
Let me ask Ms. Thomas--because you have at least cheerful
news that tuna are still out there and through statesmanship
the numbers have not been depleted substantially or in a
catastrophic way--I am still intrigued as to how that came
about. Now, maybe this is because as sort of an amateur in this
area, I have been listening to people talking about one species
after another disappearing temporarily from various blocks of
the ocean. So we have sat down and looked at areas that have
been under attack, so to speak, and dire things have happened
to the fish population. I am amazed that tuna have been spared
this fate. Why have the tuna been different? Why are these
agreements that you have described that effective?
Ms. Thomas. Well, I believe, Mr. Chairman, that when it
comes to the tuna organizations that we have existing, that it
gives all of the countries an opportunity to sit down and talk
about this and bring some kind of decision on how they are
going to manage it.
Now, there is certainly room for improvement, and there are
things that we think should be done, such as dealing with the
issue of over-capacity and fishing too much is a concern.
Luckily for the fish for canning, it is not for tuna.
The Chairman. Are there some nations that seem to be
egregious violators of this situation? In other words, do they
really go after the tuna with a vengeance without regard to
your other agreements?
Ms. Thomas. There are some, and that is part of the problem
that we are trying to deal with, is how to enforce these
agreements. We can have all of these rules and regulations, but
then how do you actually enforce them? How do you get the
countries to stop?
ICAT, the Atlantic Tunas Commission, has begun this slowly.
They have had some success in it, not great. Their major
problem has been blue fin tuna which is the large tunas that
are used for sashimi mostly. They do use this trade mechanism.
IATTC, the eastern tropical Pacific organization, just
recently also decided that they could start looking at trade
measures to block fish if they are caught incorrectly or if
they exceed a quota.
Those are the things that we still need to work on. There
is generally success, but it does not mean that it is all done.
That is where the Law of the Sea could help us because we would
be then a member of the party and can say this is what is in
the convention, and in particular in article 64.
The Chairman. So for the moment, the United States
exercises leadership anyway. You believe that is likely to have
more standing and more success.
Ms. Thomas. The State Department and the Department of
Commerce do a wonderful job when we go to these meetings.
The Chairman. Mr. Cox, you mentioned an interesting, rather
alarming point that there may have been, allegedly, 372 acts of
piracy last year. Amplify that some more. Where does this
happen? What sort of people are involved in this and how does
the convention speak to that?
Mr. Cox. Well, Mr. Chairman, the 372 acts were reported
piracy acts and they actually did occur. I said reported
because there are probably many more that are not reported.
The Chairman. I see.
Mr. Cox. But they actually happen in areas close to shore,
of course, and in straits like the Straits of Malacca where
vessels are coming by and small boats come up and actually--in
essence, it can be perceived as a mugging at sea. However, we
see that they are getting much more brazen of late, and they
are taking much stronger activity.
Now, the industry itself, through its associations--there
is an organization called BIMCO that has a piracy guideline
which is actually put on vessels, and it outlines for the
master what actions he should take in a piracy situation. It
also describes what we would do to try and prevent piracy, what
type of watch standing do we have, what do we do with the
vessel to try and protect it. And the interesting connection
that I made to myself was that some of the very same things
that we put into the security code were the very same things
that the industry already had in its piracy code.
Mr. Chairman, the missing link here is we have been trying
to get these coastal States that seem to be the epicenter of
these piracy attacks to take some action against these pirates.
We have been unsuccessful. I think that the Law of the Sea, of
course, if nothing else, I think would hopefully say that
piracy is not to be supported or condoned by any coastal State,
and certainly ratification of that by the United States and
some attention paid by the U.S. administration with regard to
piracy attacks would certainly, I think, be beneficial in
getting those nations that should be taking action to take that
appropriate action.
The Chairman. What nations specifically are involved in
this? To state it another way, what nations are not doing the
job in terms of enforcing the situation?
Mr. Cox. Mr. Chairman, nations in western Africa, nations
bordering the Straits of Malacca, some nations in South
America, both the----
The Chairman. Is this beyond the capability of their
authorities? In other words, are these pirates operating there
in ways in which they evade whatever law enforcement mechanism
those States might have?
Mr. Cox. I am not sure about what law enforcement
mechanisms they may be evading, but my intuition would say that
there is very little law enforcement going on, and so
therefore, they do not have to take too much evasive tactics.
Interestingly, there is a part of the International Ship
and Port Facilities Security Code which places on the vessel an
alarm button. It is a silent alarm which is meant to notify a
coastal State and the flag State of the vessel that an imminent
terrorist incident is taking place or about to take place. We
have cautioned the U.S. Government that when we put that alarm
on board the ship, we are certainly going to instruct the
masters that when they are in a circumstance where they feel
that someone is coming up against a vessel, they are not in a
position to determine whether or not there is a terrorist
incident, let us say, against an LNG tanker that is about to
take place or whether that is simple piracy where they are
going to come on and actually threaten the life of the people
on board and rob the vessel. The master does not know what that
is. So we are going to instruct him or her to press that alarm
button. When that is pressed, we feel that we should have some
expectation that the coastal State is going to take some
action.
The Chairman. Do something about it, yes.
Mr. Cox. And I think there is nothing worse than having
that alarm saying here is an imminent circumstance occurring
and you press a button in the hopes that someone is listening.
The Chairman. Mr. Kelly.
Mr. Kelly. Mr. Chairman, mobil drilling rigs do not carry
cargo, so our industry has not been as subject to piracy as
other vessel owners have, but we have had some incidents. I
heard of one recently where a drilling rig was in a harbor in
Brazil and pirates came aboard and robbed all the crew and took
food supplies and anything of interest. This is a subject that
is getting far too little attention in the news media and among
government policymakers.
If you look at Lloyd's List, which is the leading maritime
newspaper that is published out of London but gets considerable
distribution here in the United States, you look at any issue
of Lloyd's List and you are apt to see two columns of piracy
incidents. They are reported because claims are filed with
insurance companies and I think they are disclosed and listed
for the information of insurance underwriters, but it is quite
startling to see the volume of incidents that are now appearing
in that publication.
The Chairman. Well, we appreciate your testimony today. It
has illuminated that situation for a much broader audience. I
think it is an important issue. I suspect as we study the Law
of the Sea Convention further, we will all be apprised of a
much more comprehensive picture than we commenced with. You
certainly brought a number of points to our attention and
provided some excellent testimony for our record. We look
forward to staying in touch with you.
In reference to that, I just want to mention that formally
the committee record will remain open for 48 hours following
today's hearing so that other members of the committee who wish
to do so may submit further statements or questions for the
witnesses. If such Senators should do so, please respond as
promptly as you can to their inquiries. We will thank you for
that additional service to our committee.
Unless you have further testimony, why, the hearing will
adjourn, and many thanks again to all who have contributed to
us today. Thank you.
[Whereupon, at 11:32 a.m., the committee adjourned, to
reconvene subject to the call of the Chair.]
----------
Additional Material and Statements Submitted for the Record
------
General Counsel of the
U.S. Department of Commerce
Washington, DC, December 18, 2003
The Honorable Richard G. Lugar
Chairman, Committee on Foreign Relations
United States Senate
Washington, DC 2051O-6225
Dear Mr. Chairman:
This letter provides the views of the Department of Commerce on
accession to the Law of the Sea Convention and ratification of the 1994
Agreement on deep seabed mining. In the Department's view, joining the
Convention offers the best means to protect and to promote U.S. ocean
interests and to strengthen U.S. leadership in ocean policy. Indeed,
the Department is concerned that failure to do so will increasingly
detract from the ability of the United States to chart the direction of
ocean policies, including policies for protection of marine resources,
in years to come.
The Department's comments will focus primarily on fisheries and
living resource matters, because the recent hearings on the Convention
addressed other issues extensively. At the outset I note that the
Convention is consistent with the fisheries and other living marine
resource laws that the Department administers through the National
Oceanic and Atmospheric Administration (NOAA). Joining the Convention
would not require amendments to any of those laws.
NOAA administers a host of ocean fisheries laws, including the
Magnuson-Stevens Act, which governs fisheries in the Exclusive Economic
Zone (EEZ). NOAA also implements many international fishery agreements.
It is vital that we protect our valuable coastal resources and find
means to protect the world's fish biomass in the face of increasing
demands. The fishing industry contributes significantly to the U.S.
economy. In 2002, U.S. commercial landings totaled over 9.4 billion
pounds, worth $3.1 billion. U.S. commercial fisheries generated $28.4
billion (in value added) to the U.S. Gross National Product, and 73.3
million recreational fishing trips occurred. In 2000 (the most recent
year for which information is available), recreational fishing added
another $18.9 billion. The Food and Agriculture Organization predicts
that the global annual demand for fish will continue to increase
rapidly, to 100-120 million tons by 2010.
Acceding to the Convention would increase protection of U.S.
coastal interests by creating specific U.S. treaty rights. For
instance, it would confirm and reinforce U.S. sovereign rights and
jurisdiction with respect to natural resources in the U.S. EEZ and
continental shelf, including the right to prohibit the take of marine
mammals. Of special interest to the United States, the Convention
protects the primary rights of the coastal State over anadromous
species, such as salmon that originate in its rivers, by banning high
seas fishing for such species. It imposes conservation obligations,
applicable to all States, that are the basis for the ban on high seas
drift net fishing and international protection of resources of great
value to the United States, such as salmon and Bering Sea pollock. The
Convention also affords coastal States a high degree of discretion in
managing their EEZ fishery resources, underscored by the exemption from
binding dispute resolution for a coastal State's resource management
decisions, such as decisions about allowable catch and allocations.
The Convention protects high seas fishing rights while imposing
duties upon States to conserve and manage living resources of the high
seas and to cooperate with other States to do so. It has special
measures to protect straddling stocks and highly migratory species.
These provisions are important because the United States has
significant distant water fishing interests. Highly migratory stocks
such as tuna and billfish are among the most valuable fish for the
United States. In 2002, the United States landed almost 340 million
pounds of tuna worth $200 million.
The United States has played a leading role in the search for ways
to conserve straddling stocks and highly migratory species, some of
which are seriously overfished. To this end, we already have negotiated
agreements that implement the fundamental principles in the Convention,
including the Fish Stock Agreement (FSA) covering straddling stocks and
highly migratory species, the Food and Agriculture Organization
Compliance Agreement addressing flag State duties, the U.N. Resolution
banning high seas drift nets, the Donut Hole Agreement regarding
straddling stocks in the central Bering Sea, and, most recently, the
Convention on the Conservation and Management of Highly Migratory Fish
Stocks in the Western and Central Pacific Ocean. The Law of the Sea
Convention provides the foundation and legal framework for these
agreements. U.S. policy has been to urge all fishing States, and States
that offer their flag to fishing vessels, to become party or to adhere
to these agreements and to regional fishery agreements. Acceding to the
Convention will further the policy objective by showing that the United
States leads by example.
As a party to the Convention, the United States would be in a much
stronger position to influence how its fundamental conservation rules
are implemented and maintained, as well as how they are applied in new
circumstances. One such new circumstance, the increase in flags of
convenience in the fishing industry and widespread illegal, unreported
and unregulated fishing (so-called ``IUU fishing''), poses a new and
alarming threat to both coastal and high seas resources.
United States membership in the Convention will become more
significant in the future as we seek to find new ways to curb IUU
fishing and to promote conservation throughout the oceans. Fishing
vessels that fly flags of States that refuse to join the FSA or
regional agreements have seriously undermined conservation. When the
United States urges these ``flag of convenience'' States to comply with
the Convention's obligation to cooperate in conservation, they are
often quick to respond that the United States, a non-party, cannot
invoke the Convention. While this view is incorrect, it has become
increasingly clear that being a party to the Convention would
substantially advance U.S. coastal and global interests in the long
term.
Finally, this letter briefly addresses two other areas. First, NOAA
licenses U.S. deep seabed mining under the Deep Seabed Hard Mineral
Resources Act. As such, Commerce Department officials have attended the
meetings of the International Seabed Authority (ISA) since its
inception. The United States has always been the strongest voice for
private mining interests. While deep seabed mining is not imminent, we
believe it is in the long-term interests of the United States to ensure
that the ISA continues to implement properly the provisions of the 1994
Agreement on deep seabed mining. The United States cannot simply leave
this responsibility to others. Acceding to the Convention, including
ratifying the 1994 Agreement, will ensure continued U.S. leadership in
this field.
Second, NOAA has begun coordinating the acquisition of detailed
bathymetric data to support a U.S. claim under Article 76 of the
Convention to the extensive continental shelf area that lies beyond the
U.S. EEZ. The United States' extensive technical expertise in
bathymetry and geophysics will provide critical support to a U.S.
claim. It will also have a significant influence on future policies of
the Commission on the Limits of the Continental Shelf, but only if the
United States becomes a party to the Convention. Furthermore, the clock
is ticking for States Parties to submit claims to the Commission and,
unless it joins the Convention, the United States will have no role in
reviewing those claims.
The Department of Commerce appreciates the opportunity to present
views on the Law of the Sea Convention. The Office of Management and
Budget has advised that there is no objection to the transmittal of
this letter from the standpoint of the Administration's program.
Sincerely,
Theodore W. Kassinger
______
Prepared Statement of Dennis W. Archer, President, American Bar
Association, Washington, DC
The American Bar Association welcomes this opportunity to express
its support for ratification of the United Nations Convention on the
Law of the Sea. As members of this Committee are aware, there are
several commissions--one private, the Pew Foundation study, and the
other governmental, the statutorily-created U.S. Commission on Ocean
Policy--both currently addressing the great variety of American
interests in the oceans. However, no view of U.S. ocean interests can
be considered comprehensive that does not deal with the oceans beyond
our shores and the rules by which all nations may accommodate their
differing interests beyond the reach of national laws. That is why both
the Pew Foundation Oceans Report and the U.S. Commission on Ocean
Policy are both supporting the United States' ratification of the 1982
U.N. Convention on the Law of the Sea. The American Bar Association
strongly agrees.
The Law of the Sea Convention provides that essential universal
framework within which issues respecting the future stewardship of our
common oceans may be equitably and peacefully resolved. The American
Bar Association has therefore supported ratification of this Convention
since 1994 when necessary changes to the 1982 Convention were adopted
at the United Nations.
I would like to comment briefly on the importance of this
Convention and address specifically the issue of the consequences of
failure of the United States to ratify a Convention to which 143 states
are now party, and which has thus achieved the near-universality that
was an important objective of the United States in negotiating this
agreement over a period of twenty years and six administrations.
In August 1994 the ABA approved a resolution recommending that the
United States become party to the 1982 United Nations Convention on the
Law of the Sea, and to the Agreement relating to the Implementation of
Part XI of that Convention, which had been adopted and signed by the
United States just the month before, in July 1994. These two documents
were then submitted to the Senate in November of 1994.
Members of your Committee who are familiar with the history of the
negotiations of the Law of the Sea Convention will recall that the
United States did not sign the Convention, when it was finally
negotiated and opened for signature in 1982, because of concerns
relating to certain deep-seabed mining provisions of Part XI that did
not adequately protect possible U.S. future interests. With the
exception of these provisions there has been broad agreement that the
Convention greatly served the interests of the United States in
providing a stable legal framework for, among other things, preserving
customary freedoms of navigation vital to ocean powers such as the
United States for both strategic and commercial reasons.
Because of the importance the ABA attaches to such a rule of law
respecting the oceans, the ABA early supported efforts to find ways to
fix the controversial provisions of the deep-seabed mining regime and,
in 1990, recommended that a new effort be made to determine what
changes and clarifications would make Part XI acceptable to the United
States and to its negotiating partners. Such an effort was undertaken
by the first Bush administration and ultimately resulted in the 1994
Agreement. At that time the ABA thoroughly reviewed these new
provisions and concluded that the objections set forth by the United
States in 1982 had been fully satisfied by this new Agreement, which,
in effect, substitutes for any differing provisions in the original
text. The ABA then adopted the resolution, noted above, recommending
that the United States become a party to the Convention. Following the
adoption of the 1994 Agreement, many of our allies including the United
Kingdom, France, Germany, Japan, and others who had earlier signed, but
had not yet become a party to the Convention, then did so. The United
States, virtually alone among significant maritime nations, has yet to
ratify.
Some now suggest that since this Convention has been ratified by
143 states, including both friends and adversaries, it does not matter
whether or not the U.S. is formally a party to it. In the case of the
Law of the Sea Convention, the answer to the question of whether formal
acceptance matters is both specific, as to activities and institutions
created by the Convention, and general, with respect to the nature of
American leadership in promoting the rule of law in an increasingly
lawless world.
As to specifics, the Convention codifies rules with respect to
freedom of navigation and overflight that were not necessarily
universally recognized as customary international law. While the United
States continues where necessary to assert rights of freedom of
navigation, protests of violations or encroachments based upon
universally understood and accepted provisions in the Convention are
obviously more precise--and effective. The Convention also defines
limits of, and the resource specific nature of, coastal state
jurisdiction in an exclusive economic zone beyond the 12 mile
territorial sea. The Convention created a Law of the Sea Tribunal but,
absent ratification, the United States cannot offer a judicial
candidate, nor staff the specialized arbitral panels available under
the Convention regime. Similarly, the United States is ineligible to
put forth a candidate for membership on the Outer Continental Shelf
Commission that is reviewing proposals and making recommendations on
how states should define the boundaries of the outer continental shelf
in places where the shelf extends beyond 200 miles. As oil exploitation
had become possible in these distant areas, certainty of jurisdiction
is essential to stability, and perhaps also to the energy security of
this nation. Likewise, the United States may not currently officially
participate in the work of the International Sea-Bed Authority, and
thus directly influence and control the course of rule-making for deep
ocean resource exploitation. Lastly, it is by no means clear that the
United States may take full advantage of the Convention's provisions on
protection of the marine environment without being a party to the
treaty. In short, the Convention is living up to its original intended
function as a framework within which rules governing new and peaceful
uses of the oceans might be developed, and the United States should be
an active participant in its implementation.
More important than specifics, however, is the Convention's role as
the foundation of public order with respect to the oceans. In that
sense the treaty is an extraordinary achievement in the annals of
global rulemaking. However universally accepted the Convention's
provisions may now appear they will surely erode over time if the
United States fails to exercise the kind of continuing leadership and
participation which led to this extraordinary achievement in the first
place. There does not now appear to be any rationale which would
support our continuing nonparticipation in an agreement that so
effectively stemmed the rising tide of claims of national jurisdiction
in the oceans, and that will continue to serve our interests as long as
the United States is flanked by two great oceans.
The American Bar Association therefore welcomes this opportunity to
urge this Committee to give its advice and consent to ratification of
this Convention. Thank you.
______
Council on Ocean Law
October 18, 2003.
statement by the council on ocean law to the committee on foreign
relations of the united states senate on the united nations convention
on the law of the sea
The Council on Ocean Law welcomes the hearings of the Senate
Foreign Relations Committee on the United Nations Convention on Law of
the Sea and hopes that the Committee will proceed expeditiously to the
preparation of an advice and consent resolution for a vote of the
Senate on this important treaty originally submitted for the Senate's
advice and consent to ratification in November 1994. The Council
particularly welcomes the leadership of Senator Lugar in his efforts to
reassert the leadership role of the United States in the future of the
world's oceans.
The Council on Ocean Law was initiated in 1980 by the late Elliot
L. Richardson, the former special representative of the President to
the Law of the Sea treaty negotiations, who remained its chairman until
his death in 1999. The Council's purpose is to further public
understanding and support of this extraordinary effort to create a
framework of law to govern the increasing and often conflicting uses of
the oceans. The Council's role as a resource of information on
continuing developments in ocean law was of significant importance
during the 1980's when it became evident that new negotiations would be
necessary to meet the concerns of the United States outlined by the
Reagan Administration, and of other developed states, to Part XI of the
1982 treaty dealing with any prospective deep seabed mining beyond the
limits of national jurisdiction.
The Council believed that it was important to keep before the
public the many achievements of the 1982 treaty: Safeguarding
traditional freedoms of navigation and overflight of great strategic
importance to the United States, defining and stabilizing the
jurisdiction of coastal states over resources seaward of the
territorial sea in a 200 mile Exclusive Economic Zone, conserving
living resources and protecting the environment throughout the world's
oceans, and promoting peaceful settlement of disputes. The Council
therefore strongly supported the efforts undertaken by the first Bush
Administration at the United Nations in 1990 to renegotiate provisions
of Part XI, negotiations which resulted in the adoption in July 1994 by
the United Nations General Assembly of a new Agreement, signed by the
United States, which modified and essentially substituted for the
original Part XI in the 1982 treaty. This Agreement satisfactorily
addressed all of the specific concerns outlined by the Reagan
Administration in 1982 and included guarantees regarding the U.S. role
in future mining arrangements--guarantees which the United States
cannot take advantage of until it becomes a party to the Convention.
The Convention and the Agreement were then transmitted by President
Clinton to the Senate in November 1994 for its advice and consent to
accession to the 1982 Convention and to ratification of the 1994
Agreement.
Today 143 states and the European Community have become parties and
will continue to shape the new institutions created by the Convention,
such as the Law of the Sea Tribunal and the Commission on the Limits of
the Continental Shelf. That Commission is addressing the question of
the outer limits of the continental shelf in places where it may extend
beyond 200 miles, an issue of major interest to the U.S. as, for
example, in the Arctic.
In short there remains no reason for the United States not to join
the international community consensus represented by this treaty. On
the contrary, the treaty regime, which has created a stable framework
of law governing the uses of the oceans, could well erode over time if
the United States fails to exercise the leadership that made possible
the successful outcome of these negotiations in the first place.
Furthermore, the development of ocean law is a continuing process which
requires the active participation of the United States to ensure that
our national interests are protected.
Two years ago, at the United Nations, the George W. Bush
Administration announced its support for ratification by the U.S. of
Convention and the Agreement, noting that the Convention serves the
national security, economic, and environmental interests of the United
States. The American Bar Association, and the presidential U.S.
Commission on Ocean Policy, among others, have urged the Senate to act.
So have Secretaries of State both Republican and Democratic. In
transmitting the Convention to the Senate in 1994 then President
Clinton wrote ``the United States has basic and enduring national
interests in the oceans and has consistently taken the view that the
full range of these interests is best protected through a widely
accepted international framework governing the uses of the oceans.''
Those enduring interests have led both Republican and Democratic
Administrations to support this treaty. The Senate now should act.
______
Prepared Statement of the Humane Society of the United States, Patricia
Forkan, Executive Vice President
the legislative history and interpretation of article 65 of the law of
the sea convention
Hon. Richard G. Lugar, Chairman,
Senate Foreign Relations Committee,
United States Senate,
Washington, DC.
Dear Chairman Lugar:
The Humane Society of the United States (HSUS) appreciates your
leadership in convening hearings on the UN Law of the Sea Convention.
We believe that the United States' involvement in this Convention is
crucial. With your permission, I am including testimony on the history
and meaning of article 65 and would like to request your permission to
include my statement in the Committee's record on this important
matter.
article 65, united nations convention on the law of the sea
marine mammals
Nothing in this Part restricts the right of a coastal State or the
competence of an international organization, as appropriate, to
prohibit, limit or regulate the exploitation of marine mammals more
strictly than provided for in this Part. States shall co-operate with a
view to the conservation of marine mammals and in the case of cetaceans
shall in particular work through the appropriate international
organizations for their conservation, management and study.\1\
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\1\ www.globelaw.com/LawSea/ls82_2.htm#article_65_marine_mammals
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Introduction
The 1970s were a turning point for cetaceans in general and whales
in particular, with attitudes shifting away from the exploitation of a
resource towards conservation and protection of a unique creature. I
have been attending meetings of the International Whaling Commission
(IWC) since 1973, and have also had the privilege of being appointed in
1977 to the Marine Environment Sub-Committee of the Law of the Sea
Advisory Committee which was involved in the negotiations leading up to
the adoption of the final version of Article 65 of the United Nations
Convention on the Law of the Sea (UNCLOS). Thus I have seen the
evolution of both the IWC and the UNCLOS as parallel systems--one
driving the other--one influencing the other.
As the 1982 UN Convention on the Law of the Sea is largely
considered a ``constitution for the oceans,'' \2\ its role in the
conservation of marine mammals is of vast importance, and needs to be
accurately understood and interpreted. This report therefore seeks to
clarify the meaning of Article 65, and in particular its relation to
the IWC.
---------------------------------------------------------------------------
\2\ John Temple Swing, ``What Future for the Oceans?'', Foreign
Affairs, September/October 2003, p. 139.
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History of the Drafting of Article 65, UNCLOS
The marine mammal article of UNCLOS is considered a significant
advance in our common efforts to stop the over-exploitation of marine
mammals, especially whales and dolphins, and to conserve them.\3\
Nevertheless, potential ambiguity arises in relation to the second
sentence of the final version of Article 65 which reads: ``States shall
co-operate with a view to the conservation of marine mammals and in the
case of cetaceans shall in particular work through the appropriate
international organizations for their conservation, management and
study.'' Therefore, the historical background that follows will go
towards clarifying the meaning in particular of the appropriate
international organizations referred to in the second sentence of
Article 65, UNCLOS.
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\3\ The 12th J Seward Johnson Lecture in Marine Policy, ``Should
the United States Ratify the New Law of the Sea Treaty?'' by Ambassador
T T B Koh of Singapore at the Woods Hole Oceanographic Institution,
Woods Hole, MA, 6/4/1980.
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During the mid-seventies, there had been almost single-minded
concentration on improving the IWC with regard to whale conservation,
and the UNCLOS went largely ignored. In 1977 a meeting was convened to
discuss the problem of the weak UNCLOS Marine Mammal article. This
resulted in a new coalition of environmental and animal welfare groups
being formed to urge the U.S. to work for improved protection of marine
mammals in general and cetaceans in particular within UNCLOS.\4\
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\4\ This new coalition and effort was led by Dr. Robbins Barstow of
the Connecticut Cetacean Society. He brought together members of
Congress, NOAA, NMFS, Marine Mammal Commission and NGOs to strengthen
whale protective provisions in the LOS Treaty.
In a 6/18/1979 Letter to the Honorable John B. Breaux, Chairman of
the Subcommittee of Fish and Wildlife Conservation and the Environment,
House Committee on Merchant Marine and Fisheries, the National Wildlife
Federation suggested that the U.S. should propose language at the next
Law of the Sea meeting that would among other things make clear that
``management of at least the large whales and direct catches of small
cetaceans should be regulated by a single international organization,
the International Whaling Commission''.
---------------------------------------------------------------------------
The U.S. spearheaded the movement to clarify the marine mammal
conservation provisions of UNCLOS. An informal negotiating group, to
which I was appointed by Ambassador Elliot Richardson, was established
in the late seventies to consider revising the Informal Composite
Negotiating Text (ICNT) provisions. The states were clearly aware of
the need to conserve and protect marine mammals.\5\
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\5\ U.S. General Accounting Office, ``The Law of the Sea
Conference--Status of the Issues, 1978'', March 9, 1978.
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Initially, the agreed upon language, for the second sentence of
Article 65, referred to ``the appropriate international organization''.
At a meeting of the informal negotiating group, the representative from
Japan requested that the group consider changing the word organization
from singular to plural. He explained that since this article covered
all cetaceans, it would be better to leave the issue of cetacean by-
catch associated with regional fisheries in the hands of those various
entities. In order to be responsive to Japan, it was agreed that the
word organization would be plural. Thereby, allowing by-catch to remain
a regional fisheries responsibility.
Over many months of ongoing negotiations, progress was clearly made
as UNCLOS agreed to recognize marine mammals as unique and separate
from other living resources, and as such not subject to ``optimum
utilization''. The provisions for other living resources under UNCLOS
require coastal states to determine allowable catch, and if the coastal
state cannot harvest the entire catch, they must give other states
access to take the surplus. In the case of marine mammals this does not
apply, and coastal states can be more restrictive than the
international standard and can even protect marine mammals totally.
In addition, there was also a growing global demand from NGOs that
the IWC move away from a strictly quota setting whale killing operation
to one of conservation, protection and humanness towards these
creatures. Thus UNCLOS and the IWC in the mid and late seventies were
developing as parallel systems, and in order to accurately interpret
Article 65 of UNCLOS, the changes being discussed at the time in
relation to the IWC need to be examined. In 1978 the IWC held a
Preparatory Meeting on the Revision of the International Convention for
the Regulation of Whaling (ICRW), the culmination of years of work to
change the thrust and general character of the IWC. The U.S. began to
push for a re-negotiation of the ICRW to make it an International
Cetacean Convention. The NGO community also strongly supported
renegotiating the treaty calling for an International Cetacean
Commission (ICC)--not only changing the emphasis from whaling to the
whales themselves but to broaden jurisdiction to small cetaceans such
as dolphins and porpoises. The future ICC was to be primarily a
scientific research and study organization aimed at protecting
cetaceans, not killing them, with jurisdiction on a global basis.\6\
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\6\ On April 19, 1978, a ``Briefing Seminar on Potential Options in
the Pending Renegotiation of the IWC Treaty'' was conducted at the
National Headquarters of The Humane Society of the United States in
Washington, D.C. It was co-sponsored by The HSUS and the American
Cetacean Society. The seminar was attended by representatives of more
than a dozen different whale and conservation organizations, and the
program included background briefing presentations by a distinguished
panel of experts from the United States Department of State, Department
of Commerce (NOAA and NMFS), Marine Mammal Commission, and Council on
Environmental Quality. As a result of the day's deliberations,
including the study of extensive background information documents
provided each participant, a positive consensus was reached by NGO
representatives in support of a statement of ``Objectives for
International Cetacean Conservation''.
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In a letter to Ambassador Richardson,\7\ one of the participants in
the renegotiation of Article 65 listed one of the objectives as being
to clearly establish the authority of a single international
conservation organization to set the standards for protection and
conservation of cetaceans throughout their range.
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\7\ The Honorable Elliot L. Richardson was Ambassador at Large, and
Special Representative of the President to the Law of the Sea
Conference, U.S. Mission to the United Nations.
``At the present time such an organization exists (the IWC)
although the United States has sought to strengthen it as an
International Cetacean Commission, aimed less at `whaling' and
more at `cetacean protection'. The recent moratorium within the
IWC suggests that the organization can be strengthened
substantially along these lines and that within the next few
years the time may be right for favorable international
consideration of efforts for a strengthened ICC.'' \8\
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\8\ Letter by John Norton Moore, Walter L. Brown Professor of Law
and Director of the Center for Ocean Law and Policy, University of
Virginia to The Honorable Elliot L. Richardson, August 15, 1979.
This clearly demonstrates that the U.S. position during the
drafting of Article 65 was that the ``appropriate international
organization'' for the conservation of cetaceans was the IWC, though
the plural of the word ``organization'' leaves open the additional
possibility for a successor organization such as an ICC to qualify as
such. As another non-governmental organization succinctly stated:
``While the text implies there is more than one organization for the
conservation of cetaceans, the reference is intended to apply to the
International Whaling Commission or a successor organization.'' \9\
This was of course in addition to the role of regional fisheries in
cetacean by-catch issues.
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\9\ Sierra Club, International Report, Volume VIII, Number eight,
April 28, 1980.
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In 1979 at the same time as a partial moratorium passed at the
annual IWC meeting, and votes for a total moratorium continued to
increase, the proposed U.S. text for a new strengthened marine mammal
article was accepted as a working document in Committee II of the Law
of the Sea Conference. Finally, on March 21, 1980, the revised Article
65 was successfully adopted. Crucial to any interpretation of the
article are Ambassador Elliot Richardson's comments upon the occasion
of its adoption:
``The text that was incorporated into the ICNT, Rev. 2 was
the product of lengthy negotiations with approximately 25
States of all persuasions and geographical regions. It was
supported (or not objected to) at an informal meeting of
Committee II and in Plenary. In fact, several speakers
represented States which were not part of the representative
group. It was particularly gratifying that speakers included
representatives of the major whaling nations as well as those
States primarily interested in the protection and conservation
of marine mammals.
The new provision establishes a sound framework for the
protection of whales and other marine mammals with critical
emphasis on international cooperation. It exempts marine
mammals from the optimum utilization requirements of other
provisions of the ICNT Rev. 2 and permits States and competent
international organizations to establish more stringent
conservation regulations than otherwise mandated by ICNT, Rev.
2. Indeed, it explicitly permits States and international
organizations to prohibit the taking of marine mammals. The
text also preserves and enhances the role of the International
Whaling Commission (or a successor organization) (emphasis
added). It recognizes the role of regional organizations in the
protection of marine mammals, which are often taken incidental
to fishing operations. In sum, the article is a basic and sound
framework with which States and international organizations may
pursue the future protection of these wonderful creatures for
generations to come.'' \10\
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\10\ Letter from Ambassador Elliot L. Richardson to Patricia
Forkan, 4/29/1980.
As Ambassador Richardson indicated, the revised Article 65 received
ample support in the Committee from non-whaling \11\ and whaling
nations alike. In floor statements in Committee II on the Deliberations
on the Article 65 Amendment (3/21/1980), Japan, a strongly pro-whaling
nation, for example raised some concerns about Article 65, but made no
mention of the possibility of an organization other than the IWC
fulfilling the ``appropriate international organization'' role. The
floor statements of Japan were as follows:
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\11\ Netherlands, a country in favor of conservation stated: ``We
acknowledge the great importance of marine mammal conservation,
particularly through the IWC. This proposal is a contribution and we
support it.'' Committee II, Deliberations on Article 65 amendment,
Floor statements, 3/21/1980.
``My delegation continues to consider that the concept of
optimum utilization also applies to marine mammals.
Consequently, there is no need to single out marine mammals in
a special provision, or to focus on cetaceans in such a
provision. As a practical matter, however, we can support this
text on the understanding, with regard to the second sentence,
that these activities do not necessarily need to be undertaken
simultaneously with the first sentence, but on an individual
(per species) basis when appropriate with consultations with
other nations.'' \12\
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\12\ Committee II, Deliberations on Article 65 amendment, Floor
Statements, 3/21/1980.
Norway and Iceland, also pro-whaling nations, merely stated their
support for Article 65 without any further comments.\13\ Fast-forward
12 years to 1992 when Iceland withdrew from the IWC and tried to
establish a new organization to manage whales. Iceland, Norway,
Greenland, and the Faroe Islands formed a group called, NAMMCO, North
Atlantic Marine Mammal Commission. The purpose of NAMMCO was to unseat
the IWC as the organization with jurisdiction over whale conservation
and management. For numerous reasons, NAMMCO has never been recognized
as a legitimate organization, and in fact most countries view it as
nothing more than an exclusive whalers club. By 2002 even Iceland
realized that NAMMCO was not going to replace the IWC, and in that
year, the country rejoined the IWC.
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\13\ Ibid.
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Neither Japan nor any other country has ever joined NAMMCO.
However, 23 years after Japan agreed to the language and interpretation
of article 65 they announced a change in plans. Japan is now arguing
that the ``appropriate international organizations'' clause of Article
65 means that it is possible to have several organizations managing
cetaceans under UNCLOS. In a recent statement Japan claims that they
are considering setting up a rival organization to the IWC or joining
NAMMCO because they are displeased with the recently adopted
conservation measures at the IWC.\14\
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\14\ Japan Plans to Create Rival Organization of International
Whaling Commission (IWC). From Atuna.com, Japan, October 10, 2003.
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The United States, both then and now has not wavered in their
support of the language or the interpretation of article 65. The U.S.'s
interpretation of Article 65 was clearly outlined in a statement
prepared by the State Department in 1980 to be used as clarifying
language on Article 65:
``The appropriate/primary international organization referred
to in Article 65 is the International Whaling Commission or a
successor organization. Certain regional organizations, which
are concerned with the regulation of fishing, may also
appropriately play a role as cetaceans are occasionally taken
as incidental catch to fishing activities. It is further
understood that the minimum international standards for the
protection of cetaceans apply throughout the migratory range of
such cetaceans whether within or beyond the exclusive economic
zone.'' \15\
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\15\ Drafted by George Taft (State Department) et al at the last
session of the Law of the Sea Conference, 8/22/1980.
The protection and conservation afforded to marine mammals in the
exclusive economic zone \16\ of coastal States by Article 65 was
expanded by Article 120 of UNCLOS to apply to the high seas as well.
This expansion of coverage to the high seas also lends support to the
interpretation that the IWC (or its successor) is the ``appropriate
international organization'' for the conservation of cetaceans.
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\16\ The exclusive economic zone is a 200-mile zone in which
coastal states have sovereign rights over resources and other
activities related to economic exploration and exploitation.
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U.S. Position on Marine Mammal Conservation
Since the wording of Article 65 of UNCLOS originated with a United
States proposal, an accurate interpretation of this provision
necessitates an understanding of the U.S. position towards marine
mammal conservation in general and whaling in particular.
Setting the scene for the U.S. position on marine mammals was the
passage in 1972 of the far-reaching Marine Mammal Protection Act
(MMPA). The MMPA was amended in 1977 to forbid commercial whaling
within the U.S.'s 200-mile zone. This, in effect, recognized that
coastal states have the right to take action more restrictive than that
agreed upon in the international body, but not less restrictive action
which would weaken internationally accepted conservation measures. The
MMPA also required the renegotiation of relevant treaties to reflect
its standards. The MMPA was therefore an important impetus for the U.S.
position within UNCLOS that coastal states could be more protective of
whales than the IWC, but not less.
The U.S. government began in the early 1990s to oppose more
forcefully all commercial whaling,\17\ and in 1993 both houses of
Congress unanimously adopted a resolution, H. Con. Res. 34 (103rd
Congress), calling for the U.S. to oppose ``any resumption of
commercial whaling.''
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\17\ CRS Report 97-55, ``Norwegian Commercial Whaling: Issues for
Congress'', Carl Elk, December 31, 1996.
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The U.S. has also relied upon the threat of unilateral sanctions to
induce whaling nations to give greater consideration to whale
conservation.\18\ It has done this mainly through the 1971 Pelly
Amendment \19\ to the 1954 Fishermen's Protective Act, which allows
fishery product imports to be prohibited from nations acting to
diminish the effectiveness of international fishery (including whaling)
agreements. Presidential authority under the Pelly Amendment was
expanded to impose sanctions against non-fishery imports from nations
acting contrary to IWC guidelines in the 102nd Congress.\20\ In
addition, the 1979 Packwood-Magnuson Amendment \21\ to the Fishery
Conservation and Management Act of 1976 allows the U.S. to reduce or
suspend fishing privileges in U.S. waters for nations acting contrary
to IWC guidelines.\22\ Although Pelly amendment sanctions have never
been imposed for whaling, the U.S. has used its certification process
to obtain some concessions from offending nations to improve whale
conservation and has influenced whaling nations to join the IWC.\23\
Norway, Japan, and Canada have all been certified under the Pelly
amendment in the past for undermining the IWC.
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\18\ CRS Report 97-588, ``Whale Conservation and Whaling'', Eugene
H. Buck.
\19\ 22 U.S.C. 1978.
\20\ Section 201 of P.L. 102-582.
\21\ 16 U.S.C. 1821.
\22\ The threat of Packwood-Magnuson sanctions is no longer
influential, since no foreign whaling nation currently fishes in U.S.
waters.
\23\ Supra n. 17
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The strong position of the U.S. that the IWC is the ``appropriate
international organization'' under Article 65 of UNCLOS was reinforced
in 1996, when Canada permitted the harvesting by Inuit of two bowhead
whales. The U.S. supports aboriginal whaling when it is managed through
the IWC, the global body charged with responsibility for the
international conservation and management of whale stocks and the
regulation of whaling.\24\ Although Canada was not a member of the IWC
at the time, the U.S. still certified Canada under the Pelly amendment,
taking the view that the bowhead whale harvest had undermined the
effectiveness of the IWC. In a message to Congress, President Clinton
stated that, under international law, Canada was obligated to work
through the IWC with regard to any whaling activities.\25\
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\24\ NOAA Press Release, 12/18/1996, ``Commerce Department
Certifies Canada Under Pelly Amendment for Whaling'', at
www.publicaffairs.noaa.gov/pr96/dec96/noaa96-r194.html
\25\ President William J. Clinton, Message to Congress on Canadian
Whaling Activities, 2/10/1997, 33Weekly Comp. Pres. Doc. 175 (1997).
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As recently as June of this year, members of the Senate reaffirmed
that at the 55th Annual Meeting of the IWC the U.S. should ``remain
firmly opposed to commercial whaling''.\26\
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\26\ S. Con. Res. 55 (108th Congress), 6/12/2003.
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International Reinforcement of the IWC's Role in Relation to Article 65
Apart from the very clear position of the United States both during
the negotiation process and in subsequent years that Article 65 of
UNCLOS is to be interpreted so that the IWC (or an even stronger
conservation-oriented successor organization such as an International
Cetacean Commission) is understood to be the ``appropriate
international organization'', there is also international support for
this interpretation.\27\
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\27\ There even appears to be support for this interpretation from
pro-whaling nations. One commentator notes that Iceland, a pro-whaling
nation, interpreted Article 65 of UNCLOS to mean that the IWC is the
appropriate international organization with jurisdiction over whale
management. ``In 1991, Iceland, a party to the 1982 Law of the Sea
Convention, was contemplating withdrawing from the IWC. It appears that
Iceland took the view that Article 65 required it to adhere to IWC
quota regulations irrespective of its membership in the IWC.'' Ted L.
McDorman, ``Canada and Whaling: An Analysis of Article 65 of the Law of
the Sea Convention'', Ocean Development & International Law, 29: p.
183-184 (1998)
A commentator from Norway, also a pro-whaling nation, has stated:
``However poorly the IWC may be seen to function, as measured against
what it was intended to be, or could have been, it is a fact that by
the large majority of member states it is seen as the only legitimate
international body for dealing with the whaling issue. These nations
include the US, all the main EU (European Union) states, most major
western countries, including most Nordic countries.'' Steinar Andresen,
The Fridtjof Nansen Institute, Oslo Norway, 11NAMMCO, IWC and the
Nordic Countries'' from Whaling in the North Atlantic--Economic and
Political Perspectives, Ed. Gudrun Petursdottir, University of Iceland,
1997. Proceedings of a conference held in Reykjavik on March 1, 1997,
organized by the Fisheries Research Institute and the High North
Alliance, at www.highnorth.no/Library/Publications/Iceland/na-iw-an.htm
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International organizations recognize IWC's primacy for the
conservation of whales. Most notably, Chapter 17 of Agenda 21, the
environmental action plan endorsed by the 1992 United Nations
Conference on Environment and Development adopts Article 65 of UNCLOS,
and provides that states recognize:
(a) The responsibility of the International Whaling
Commission for the conservation and management of whale stocks
and the regulation of whaling pursuant to the 1946
International Convention for the Regulation of Whaling;
(b) The work of the International Whaling Commission
Scientific Committee in carrying out studies of large whales in
particular, as well as of other cetaceans.'' \28\
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\28\ Agenda 21, para. 17.61 at www.on.org/esa/sustdev/documents/
agenda21/english/agenda21chapter17.htm
This position was bolstered by language in an IWC Resolution on the
interaction of fish stocks and whales that was passed by consensus. The
parties acknowledged at the outset of the Resolution that ``the IWC is
the universally recognized international organization with competence
for the management of whale stocks.'' \29\
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\29\ IWC, Proposed Resolution on Interactions Between Whales and
Fish Stocks, Resolution 2001-9 (2001).
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The Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) has always recognized IWC primacy over whale
management and conservation. In 1986, in deference to the IWC's
commercial whaling moratorium, all great whales were placed on Appendix
1 (meaning whales and whale products cannot be traded internationally).
Moreover, CITES has adopted several resolutions that relate to whales
and the IWC that were consolidated in 2000 in Resolution 11.4 on
``Conservation of cetaceans, trade in cetacean specimens and the
relationship with the International Whaling Commission''. This
resolution recognizes the primacy of the IWC over whale management and
conservation.
The Evolution of the IWC
Finally, it needs to be said that the evolution of the IWC itself
into a more conservation and welfare oriented organization reinforces
the interpretation that the IWC is the appropriate international
organization as envisioned by the negotiators of Article 65 of UNCLOS.
Some commentators have argued that Article 65 reflects a trend in the
protection of cetaceans beyond economic value, to include
considerations of a moral and ethical nature.\30\
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\30\ Maffei, M.C., 1992, The Protection of Endangered Species of
Animals in the Mediterranean Sea in The Law of the Sea: New Worlds, New
Discoveries, Proceedings of the 26th Annual Conference of the Law of
the Sea Institute, Edited by Miles & Treves, Law of the Sea Institute,
Honolulu.
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Since the IWC implemented a commercial whaling moratorium in 1986,
it has placed greater emphasis on conservation of whales than
regulating their exploitation. For example, it has designated
established sanctuaries in the Southern and Indian Oceans. Today, a
majority of IWC members are more concerned with protecting and
conserving whales (and small cetaceans) than promoting and defending an
industry that previously decimated whale stocks and proved impossible
to regulate.\31\ The IWC has also taken on a welfare mandate, advancing
``humane killing'' and discussing associated welfare issues in various
committees.
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\31\ Kitty Block and Sue Fisher, ``Legal precedents for whale
protection.''
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In addition, the IWC has adopted at least fifteen resolutions whose
purpose is to improve the welfare of whales, and the most recent
meeting of the World Parks Congress agreed that marine species require
``protection'' and that their habitat needs ``conservation'' through
domestic and high seas protected area systems.\32\
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\32\ World Parks Congress, 2003, The Durban Accord and
Recommendation 5.22 Building a Global System of Marine and Coastal
Protected Area Networks and Recommendation 5.23 Protecting Marine
Biodiversity and Ecosystem Processes Through Marine Protected Areas
Beyond National Jurisdictions, Vth IUCN World Parks Congress, World
Conservation Union and World Commission on Protected Areas, Durban,
South Africa.
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At this year's 55th annual IWC meeting, the Berlin Initiative was
passed, strengthening the IWC's conservation agenda by forming an
official committee to deal with such issues as by-catch and pollution.
The initiative provides for the creation of a conservation committee to
draft a ``Conservation Agenda'' as well as the means to implement it.
This finally brings the IWC into the 21st century, and seems to settle
the question of the IWC's future direction.
An International Cetacean Commission, as envisioned by the U.S. at
the time of the drafting of Article 65 in the late 1970s never
materialized, the IWC is evolving from an industry based organization
to one of conservation. A clear majority of IWC members now oppose the
commercial exploitation of whales and support whale conservation and
protection. Since Article 65 reflects a worldwide interest in and the
belief that marine mammals in general and cetaceans in particular are
unique, and must be protected on a global basis, the only accurate
interpretation is that the IWC is the ``appropriate international
organization'' to conserve, manage and study whales. A few whaling
nations cannot now alter or rewire the history of Article 65 simply
because they do not wish to honor the conservation measures adopted at
the IWC. The commercial whaling moratorium adopted at the IWC in 1982,
and still in place today, reflects the will of nations and civil
society.\33\ We must not allow the purpose and meaning of article 65 to
be distorted and become the excuse or justification for whaling nations
to ignore their conservation obligations at IWC and form a new
organization that endorses the resumption of commercial whaling.
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\33\ In Stockholm in 1972, delegates to the United Nations
Conference on the Human Environment called for a moratorium on
commercial whaling. The resolution proposed by the United States called
for a ten-year moratorium on commercial whaling. It passed by fifty
three votes to zero (Japan, Brazil and South Africa abstained).
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As someone who spent five years working on Article 65 and thirty
years at the IWC, I am very pleased that the United States intends to
ratify UNCLOS. I thank you on behalf of our 8 million members and
constituents for the opportunity to speak on this very important issue
and to clarify on the record the correct meaning of article 65.\34\
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\34\ I would also like to thank Bettina Camcigil, Director of
Research, Investigative Services, HSUS and Kitty Block, Special Counsel
to the United Nations and Treaties Department, HSUS, for their help and
assistance in the researching and the drafting this testimony.
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______
Prepared Statement of Senator John F. Kerry
I am very pleased, Mr. Chairman, that you have called these
hearings on the United Nations Convention on the Law of the Sea, or
UNCLOS. I have been a longtime supporter of this treaty. The Law of the
Sea secures important rights for our military, for our commercial
interests, and for the protection of our marine environment. Senate
consideration of this comprehensive international agreement has
languished over the years, and I am encouraged that we might begin to
make some progress toward ratification.
UNCLOS establishes important international rules for freedom of
navigation and the use and conservation of ocean resources. Several
international fisheries agreements have also been developed under its
auspices for highly migratory species and straddling stocks. The treaty
establishes much needed international rules on the rights and
obligations of countries, as well as limits, for using the world's
oceans.
However, as we proceed, we must also consider the potential
implications of ratification on our coastal interests. We must ensure
that we will continue to be able to enact laws necessary to protect our
environment, manage our natural resources, secure our coasts from
threats, and for similar priorities.
As the ranking member of the Senate Commerce Committee's
Subcommittee on Oceans, Fisheries and Coast Guard, I am particularly
interested in matters related to the protection of our living marine
resources and the quality of our marine environment. I agree with my
friend Senator Stevens that we must be extremely careful that UNCLOS
not be used by other nations to weaken U.S. measures to sustain and
manage our fisheries.
Likewise, we must ensure that becoming a party to NCLOS would not
hamper Congress from enacting important laws to protect such resources
and the marine environment, including laws such as the Oil Pollution
Act of 1990, which required double hulls on tank vessels to prevent
future spills like Alaska experienced with the Exxon Valdez. While the
U.S. must continue to be firmly engaged in the multilateral process,
Congress must also be assured that we will have the flexibility to
enact protections here at home in the absence of international action,
or that are more stringent than those that can be agreed upon
internationally.
Ambiguities in some parts of UNCLOS warrant the development of
clear understandings of how we will interpret its provisions to ensure
that our ability to enact such laws are not compromised. For example,
Article 21 provides strong authority to coastal States to adopt laws
and regulations related to the management and protection of living
marine resources and the marine environment for ships in innocent
passage that pass through their territories. However, it also provides
that such laws and regulations shall not apply to the ``design,
construction, manning or equipment of foreign ships,'' unless they are
implementing ``generally accepted international rules or standards.''
Many environmental laws that regulate impacts to the marine environment
could result in changes to equipment, e.g., performance standards that
could be met through operational changes or through innovative
technology developments. If ``design, construction, manning or
equipment'' measures are interpreted as any measure that may result in
the use of new technologies, the right of countries to enact domestic
laws that regulate such impacts under Article 21 could be severely
undermined.
Similarly, on security issues, UNCLOS strikes a careful balance
between the rights of free passage and the ability of coastal States to
protect their borders. We must ensure that UNCLOS will not interfere
with our ability to protect our ocean borders from terrorist threats.
I strongly advocate that the Senate move forward to provide its
advice and consent on the Law of the Sea Convention. However, as part
of that process, we must make it clear how the U.S. will interpret
various provisions of the convention so as to protect our interests
both internationally and as the coastal State with the largest EEZ in
the world.
I look forward to working with you, Mr. Chairman, with you, Senator
Biden, and with the rest of my colleagues on both the Foreign Relations
Committee and the Commerce Committee to develop a full record of our
concerns and agreement on such understandings, and to moving this
treaty forward.
______
National Marine Manufacturers Association,
1819 L Street, NW, Suite 700,
Washington, DC, November 10, 2003.
The Honorable Richard G. Lugar, Chairman,
U.S. Senate Committee on Foreign Relations,
450 Dirksen Senate Office Building,
Washington, DC.
Dear Chairman Lugar:
Mr. Chairman, on behalf of the National Marine Manufacturers
Association (NMMA), I want to commend you and the Senate Foreign
Relations Committee for holding the two hearings on Tuesday, October
14, 2003 and Tuesday, October 21, 2003 addressing the topic of the
United Nations Convention on the Law of the Sea (UNCLOS). NMMA, the
nation's leading recreational marine trade association, urges the
Senate to support ratification of UNCLOS. NMMA represents over 1,500
member companies that are involved in every aspect of the recreational
boating industry and our members manufacture over 80 percent of all
recreational boats, engines, trailers, and accessories purchased by the
boating community in the United States. NMMA urges Senate ratification
of UNCLOS to complete the accession process and afford the U.S. a full
participatory role in formulation and implementation of a uniform,
worldwide law of the seas.
U.S. accession to UNCLOS is vitally important for several reasons.
While NMMA did not have an opportunity to testify at either of the
hearings, it offers the following comments for consideration. First,
the United States traditionally has been the world leader in protecting
the rule of law of the oceans to protect navigational freedom upon the
high seas. Second, accession will provide the U.S. a platform from
which to better protect U.S. oceans interests. Third, accession will
enhance U.S. foreign policy by bolstering its commitment to
multilateralism. NMMA addresses each issue and provides the
recreational boating perspective on each for your consideration.
NMMA believes that the single most compelling reason for accession
is to ensure the freedom of movement of naval, commercial, and
recreational vessels upon the high seas, which is the most important
U.S. oceans interest and is threatened by U.S. non-adherence. U.S.
interests have been undermined because the U.S. has been precluded from
participation on the various councils, commissions, and tribunals
established under UNCLOS. Accession will allow the U.S. to participate
fully in the annual meeting of States Parties. The mere presence of the
U.S. at this meeting, absent an active role, has seriously jeopardized
critical navigational freedoms, which were hard won by U.S. negotiators
during early UNCLOS deliberations. NMMA is concerned that continued
non-adherence will erode the recreational boating community's freedom
of movement and from piracy upon the high seas, which, at its most
basic, means access or the lack thereof.
Today, there are more recreational boaters than ever before in U.S.
history. Many in the boating community have benefited greatly from
technological enhancements in boat design, navigation, and
communications. Presently, there are nearly 400,000 recreational boats
65 feet in length or longer in the U.S. alone, and recreational boats
between 300 and 400 feet in length are not uncommon. All of these boats
have the capability to travel on the high seas, and provide their
owners the opportunity to travel to many interesting and exciting ports
of call. Like their naval and commercial brethren, U.S. recreational
boaters benefit from freedom of navigation upon the high seas as well
as freedom from piracy. U.S. involvement in the protection of these
interests is a vital concern to the entire recreational boating
community including the recreational boating industry. Of course,
navigational freedoms are not the only benefit of accession to UNCLOS.
U.S. accession to UNCLOS also will ensure other vital U.S. oceans
interests. These interests are varied, but they all have one thing in
common, the need for a coherent, standard, well-vetted worldwide rule
of law--a constitution of the sea.
Accession to UNCLOS will ensure protection of U.S. economic
interests by allowing for the stability necessary to foster
economic development of the seabed including oil, gas, and
mineral exploration and exploitation as well as protecting the
burgeoning recreational marine industry in the United States.
UNCLOS also provides a stable atmosphere for scientific
exploration and discovery, another issue of access that will
affect the recreational boater because allowing access sets a
precedent of freedom of navigation and use of the world's
oceans.
UNCLOS provides for meaningful environmental protection and
monitoring because it establishes a mechanism for the
coordination and implementation of a worldwide environmental
policy, which impacts the recreational boater directly and
positively by providing for a cleaner more pristine environment
in which to engage in the pursuit of boating.
UNCLOS promotes the strong obligation for resource
management including fisheries management, a vital interest for
many recreational boaters. UNCLOS' provisions on fisheries
management are consistent with U.S. domestic fisheries laws as
well as U.S. international fisheries agreements and
understandings.
Finally, accession will signal to the international
community the U.S. commitment to multilateralism, and will
foster an atmosphere conducive to the rule of law, which will
impact the recreational boater by providing a structure and
mechanisms to address international concerns that may affect
the recreational boater, particularly the world traveling
boater.
NMMA is hopeful that the U.S. will soon take its rightful seat at
the table and strongly urges the Senate to support ratification of
UNCLOS. NMMA is offering its services in an effort to ensure
ratification. Please do not hesitate to contact Jeffrey Gabriel of my
staff or email jgabriel@nmma.org
Sincerely,
Monita W. Fontaine, Esq.,
Vice President, Government Relations.
______
Prepared Statement of U.S. Arctic Research Commission, George B.
Newton, Jr., Chairman
Chairman Lugar, Senator Biden, members of the Senate Committee on
Foreign Relations, thank you for this opportunity to enter my comments
into the record of your hearings. I speak on behalf of the United
States Arctic Research Commission which I chair. The Arctic Research
Commission is an independent agency of the U.S. government created by
the Arctic Research and Policy Act of 1984 (as amended). By the Act, we
report to both the President and Congress. Our principal responsibility
is to recommend to the President and to the Congress Arctic research
policies and priorities for the United States. Other duties include:
promotion of inter-agency research cooperation; promotion of
international, state, and local research activity; facilitation of data
sharing; and enabling improved Arctic research logistics. The
Commission does not fund research. In fact the Commission budget just
pays for its administration. Our effectiveness comes from the ``bully
pulpit'', our ability to put the hand of one research organization into
the hand of another, or similarly, our ability to convince someone that
a specific area of research should be undertaken. One last item: we are
one of the smallest agencies in our Government.
Given the foregoing, why is the Arctic Research Commission
interested in accession of the United States to the UN Convention on
the Law of the Sea?
The Commission wishes to address you for two reasons. The first is
our concern for the future of U.S. research in the Arctic Ocean,
particularly in areas that may be claimed by other nations as
extensions of their continental shelf under the provisions of Article
76 of the Law of the Sea Treaty.
We will address specific concerns for Arctic Ocean research and the
Law of the Sea later in this statement. However, at the outset we must
accept that the Arctic is the most poorly understood Ocean on earth.
What little we do know clearly indicates that it has significant
influence on the world climate, and is right now changing dramatically.
With an increasingly accessible Arctic, exploitation opportunities will
follow with attendant environmental impacts. The knowledge produced by
our research efforts underlies these factors, and thus, leads to the
other areas of national concern that we address in the following
paragraphs.
The second reason therefore is as American citizens. The evolving
conditions in the Arctic Ocean which we address (in addition to
research) will affect the U.S. in the following areas: international
security (our term for terrorism), national security, economic
development, commerce and diplomacy. Specifically, if this country does
not accede to the Law of the Sea Treaty, each of these necessary and/or
productive areas of national interest will be complicated or worse yet,
be precluded in the Arctic Ocean.
Through our accession to the Law of the Sea Treaty we as a Nation
can make a statement that we will be preeminent in the Arctic Ocean. If
we do not, we effectively cede the Ocean, which touches our border, to
the rest of the world.
Why is the Arctic Ocean so critical? And why now?
1. Up to now, the Arctic Ocean has been largely ignored and
under appreciated. The Arctic Ocean has never been seen as an
economic contributor to our Nation.
2. Thus, it is an ocean we do not understand. However,
emerging signs say its exploitation may yield great national
opportunities.
3. The Arctic climate is changing. Some experts predict that
the Arctic Ocean will be ice free for ninety days or more in
the summer by the year 2050. Less ice means greater
accessibility and therefore, demands our consideration of all
things that are now considered routine in and on the temperate
oceans of the world.
Please allow us to address the six areas of our concern for the
nation's role in the Arctic and our accession to the Treaty.
research
Russia is at this time the only country to have submitted a claim
to extend the outer limits of her continental shelf, as allowed under
Article 76 of the Treaty. It has not yet been approved. Russia's
submitted claim covers roughly 45% of the Arctic Ocean bottom. Article
76 grants to nations with approved claims control over all resources on
or under the seabed, all ocean bottom research, cables and pipelines.
The body that adjudicates all claims, the Commission on the Limits of
the Continental Shelf (CLCS), is composed of representatives of states
party to the Treaty. Its meetings are closed and no observers are
allowed. The U.S. is therefore, unable to comment on Russia's (or any
other nation's) claim. Ultimate approval of Russia's claim will convey
authority in the approved area to access for any nation to conduct
research on and/or beneath the ocean seabed. It is of concern that
Russia has not granted access to U.S. research vessels seeking
clearance to work inside the Russian 200 mile EEZ in nearly 10 years
where, under the Treaty, similar clearance requirements exist.
Knowledge of the ocean bottom and sub-bottom is fundamental to
understanding the Arctic Ocean itself.
national security
With more open water in the Arctic will come greater use of that
ocean by all nations. More than a score of nations have active Arctic
research programs. The U.S./Alaska coastline on the Arctic Ocean is
over 1000nm ( 1850km). These two facts carry with them the need to
exercise sea control and protection on another ocean, or cede that role
to whichever nation is willing to assume it.
international security
With a long, unprotected and essentially unmanned border in the
Arctic, drug trafficking, illegal immigration and potential terrorist
entry become relevant issues.
economic development
The U.S. claim under Article 76 of UNCLOS is expected to add an
area of about 62,000 sq. km on the Chukchi Cap (This is an area roughly
equal to the area of West Virginia). With accession to the treaty and a
successful claim the U.S. would have the sole right to the exploitation
of all the resources on or under the ocean bottom. Of relevance is the
fact that oil/gas potential of the area is estimated to be high.
One naturally thinks that the challenge of producing oil and gas
offshore in the harsh, dynamic and ice infested Arctic is too difficult
to overcome. But oil is produced safely and effectively in other ocean
areas that experience rough weather, namely the North Sea and the Gulf
of Mexico. Furthermore we believe that if viable oil prospects are
discovered, existing technologies will be adapted and new techniques
developed which will enable access to the Chukchi Cap and offshore the
Nortji Slope for ocean drilling and production safe from sea ice.
As examples: an appraisal well was recently drilled in the Gulf of
Mexico in a water depth of 2951 meters (9682 feet). Other producing
wells exist at depths of up to 2197 meters (7208 feet) and some
floating platforms receive oil from wells that are over 200nm away.
These potential resources could make large contributions to U.S. energy
independence in the lives of our children and grand children.
commerce
As environmental change proceeds in the Arctic, greater
accessibility, driven by less ice will allow a longer shipping season.
With more open water and a longer season, ocean commerce is sure to
increase, for the distance between Seattle and Hamburg, Germany (for
example) it is just about 40% shorter than it is via either of the
canals. With such a clear savings, the Arctic becomes the faster,
cheaper equivalent of either the Panama or Suez Canals and, in the case
of the Northwest Passage, is entirely in the control of well
established allies.
Similarly it is logical to expect a desire to extend the shipping
season even more using ice strengthened ships. This in turn means cargo
will be transferred from the ice strengthened ships to normal cargo
carriers at the first port opportunity after completing the Arctic
Ocean passage. We see great opportunity for the U.S. to develop cargo
transfer facilities at ports such as Dutch Harbor and Adak, in the
Aleutian Island chain.
diplomacy
Lastly, we offer a few thoughts about the impact on diplomacy
gained by acceding to the treaty and conducting the Article 76 surveys
in the Arctic.
First of all, a recent international meeting on extending
continental limits under the Law of the Sea, attended by
representatives from over 50 nations, included 11 of the 21 members of
the CLCS. Three of the CLCS members in attendance sought us out to
encourage us to do all we can to gain U.S. accession. The reasons cited
were U.S. leadership in general and the data quality standard the U.S.
could set through submission of our claim under Article 76.
Secondly, our Western Arctic neighbors are getting very close to
accession. The Danish parliament has approved the Treaty and they await
final (and apparently imminent) approval by the Greenland Home Rule
government. Representatives within the Canadian government indicate
that accession may well occur early in the coming year. The Commission
believes that we should join them, as it is in our mutual interest to
work cooperatively in the Arctic.
Finally, without acceding to the treaty we are unable to use the
dispute resolution process created under the treaty and, as a
consequence, are unable to effectively interact with other nations in
solving the difficulties that from time to time arise in our maritime
enterprises ranging from research, through commerce and fishing, to
military activities and border security.
in conclusion
The aforementioned changes to the Arctic Ocean are becoming
apparent now and will develop over the next forty plus years, well
beyond the horizon of preparation and planning we normally practice in
this country. We entreat you to take the long view. The time to start
is NOW. The progress and development needed to exploit the Arctic fully
when we are able, will take time but if we start now we can avoid
playing expensive catch up ball in a crisis mode. Securing our
interests by acceding to the Law of the Sea Treaty is the critical
first step.
Thank you very much for this opportunity to convey to you the
recommendations of the United States Arctic Research Commission. Please
feel free to contact the Commission if there is any further information
we can provide.
United States Arctic Research Commission,
4350 North Fairfax Drive, Suite 510,
Arlington, VA 22203, February 23, 2004.
The Honorable Richard G. Lugar,
Chair, Senate Foreign Relations Committee,
United States Senate,
Senate Dirksen Office Building, Room SD-450,
Washington, DC 20510
Dear Senator Lugar:
Incident to your hearings held to address accession by the United
States to the United Nations Convention on the Law of the Sea (UNCLOS),
as Chair of the U.S. Arctic Research Commission, I provided testimony
for the record in support of such action.
In mid-November, the full Commission met in formal session in
Washington and agreed unanimously that the United States should ratify
the UNCLOS Treaty at the earliest practicable opportunity and directed
Staff to prepare a formal resolution confirming that position to our
reporting Seniors--the President and the Congress.
Forwarded herewith are copies of the Commission resolution sent
earlier to the President, the President (Pro tem) of the Senate, and
the Speaker of the House.
The U.S. Arctic Research Commission remains at your disposal to
assist your efforts leading to timely accession to UNCLOS.
Sincerely,
George B. Newton, Jr., Chair
United States Arctic Research Commission,
4350 North Fairfax Drive, Suite 630,
Arlington, VA 22203, January 14, 2004.
The Hon. Ted Stevens,
President pro tempore,
The United States Senate,
Senate Hart Office Building,
Washington, DC, 20510
Dear Senator Stevens,
At its meeting on the 19th and 20th of November 2003 the Arctic
Research Commission heard a series of witnesses on the importance of
the United Nations Convention on the Law of the Sea (UNCLOS). The
Commissioners concluded that it was in the nation's interest that we
become a party to the Convention.
The benefits of acceding to UNCLOS include:
The opportunity to participate in the dispute resolution
systems established by the Convention.
The opportunity to serve on bodies such as the Commission on
the Limits of the Continental Shelf which will consider claims
for extensions of the continental margin of all nations
applying.
The opportunity to participate in decisions regarding
amendments to the Convention which will open for amendments in
the coming year. The opportunity to represent the nation's
interests in freedom of navigation through strategic straits.
In particular, the Commissioners recommend that we proceed to
collect the information necessary for a claim to increase the area of
influence of the United States under UNCLOS Article 76 which allows for
national claims to extensions of their continental margins.
A copy of the Commission's resolution is attached. Please feel free
to call on the United States Arctic Research Commission for any
information we may be able to provide.
Sincerely,
George B. Newton, Jr., Chair
RESOLUTION
At its recent meeting in Washington the Arctic Research Commission
heard from several witnesses concerning the importance of accession to
the United Nations Convention on the Law of the Sea (UNCLOS) by the
United States. The Commission has been studying the implications of
UNCLOS for some time. In addition, the Commissioners and Staff have
participated in several international meetings on the Convention. The
provisions of UNCLOS Article 76 are particularly important to the
Commission as the potential for an extension of the US continental
margin in the Arctic Ocean is substantial and the necessary data must
be acquired soon in order to support a US claim. As a consequence of
our studies:
the United States Arctic Research Commission supports United States
accession to the United Nations Convention on the Law of the Sea.
______
Fact Sheet
The White House, Office of the Press Secretary
Washington, DC
September 4, 2003
Proliferation Security Initiative: Statement of Interdiction Principles
The Proliferation Security Initiative (PSI) is a response to the
growing challenge posed by the proliferation of weapons of mass
destruction (WMD), their delivery systems, and related materials
worldwide. The PSI builds on efforts by the international community to
prevent proliferation of such items, including existing treaties and
regimes. It is consistent with and a step in the implementation of the
UN Security Council Presidential Statement of January 1992, which
states that the proliferation of all WMD constitutes a threat to
international peace and security, and underlines the need for member
states of the UN to prevent proliferation. The PSI is also consistent
with recent statements of the G8 and the European Union, establishing
that more coherent and concerted efforts are needed to prevent the
proliferation of WMD, their delivery systems, and related materials.
PSI participants are deeply concerned about this threat and of the
danger that these items could fall into the hands of terrorists, and
are committed to working together to stop the flow of these items to
and from states and non-state actors of proliferation concern.
The PSI seeks to involve in some capacity all states that have a
stake in nonproliferation and the ability and willingness to take steps
to stop the flow of such items at sea, in the air, or on land. The PSI
also seeks cooperation from any state whose vessels, flags, ports,
territorial waters, airspace, or land might be used for proliferation
purposes by states and non-state actors of proliferation concern. The
increasingly aggressive efforts by proliferators to stand outside or to
circumvent existing nonproliferation norms, and to profit from such
trade, requires new and stronger actions by the international
community. We look forward to working with all concerned states on
measures they are able and willing to take in support of the PSI, as
outlined in the following set of ``Interdiction Principles.''
interdiction principles for the proliferation security initiative
PSI participants are committed to the following interdiction
principles to establish a more coordinated and effective basis through
which to impede and stop shipments of WMD, delivery systems, and
related materials flowing to and from states and non-state actors of
proliferation concern, consistent with national legal authorities and
relevant international law and frameworks, including the UN Security
Council. They call on all states concerned with this threat to
international peace and security to join in similarly committing to:
1. Undertake effective measures, either alone or in concert
with other states, for interdicting the transfer or transport
of WMD, their delivery systems, and related materials to and
from states and non-state actors of proliferation concern.
``States or non-state actors of proliferation concern''
generally refers to those countries or entities that the PSI
participants involved establish should be subject to
interdiction activities because they are engaged in
proliferation through: (1) efforts to develop or acquire
chemical, biological, or nuclear weapons and associated
delivery systems; or (2) transfers (either selling, receiving,
or facilitating) of WMD, their delivery systems, or related
materials.
2. Adopt streamlined procedures for rapid exchange of
relevant information concerning suspected proliferation
activity, protecting the confidential character of classified
information provided by other states as part of this
initiative, dedicate appropriate resources and efforts to
interdiction operations and capabilities, and maximize
coordination among participants in interdiction efforts.
3. Review and work to strengthen their relevant national
legal authorities where necessary to accomplish these
objectives, and work to strengthen when necessary relevant
international law and frameworks in appropriate ways to support
these commitments.
4. Take specific actions in support of interdiction efforts
regarding cargoes of WMD, their delivery systems, or related
materials, to the extent their national legal authorities
permit and consistent with their obligations under
international law and frameworks, to include:
a. Not to transport or assist in the transport of any
such cargoes to or from states or non-state actors of
proliferation concern, and not to allow any persons
subject to their jurisdiction to do so.
b. At their own initiative, or at the request and
good cause shown by another state, to take action to
board and search any vessel flying their flag in their
internal waters or territorial seas, or areas beyond
the territorial seas of any other state, that is
reasonably suspected of transporting such cargoes to or
from states or non-state actors of proliferation
concern, and to seize such cargoes that are identified.
c. To seriously consider providing consent under the
appropriate circumstances to the boarding and searching
of its own flag vessels by other states, and to the
seizure of such WMD-related cargoes in such vessels
that may be identified by such states.
d. To take appropriate actions to (1) stop and/or
search in their internal waters, territorial seas, or
contiguous zones (when declared) vessels that are
reasonably suspected of carrying such cargoes to or
from states or non-state actors of proliferation
concern and to seize such cargoes that are identified;
and (2) to enforce conditions on vessels entering or
leaving their ports, internal waters or territorial
seas that are reasonably suspected of carrying such
cargoes, such as requiring that such vessels be subject
to boarding, search, and seizure of such cargoes prior
to entry.
e. At their own initiative or upon the request and
good cause shown by another state, to (a) require
aircraft that are reasonably suspected of carrying such
cargoes to or from states or non-state actors of
proliferation concern and that are transiting their
airspace to land for inspection and seize any such
cargoes that are identified; and/or (b) deny aircraft
reasonably suspected of carrying such cargoes transit
rights through their airspace in advance of such
flights.
f. If their ports, airfields, or other facilities are
used as transshipment points for shipment of such
cargoes to or from states or non-state actors of
proliferation concern, to inspect vessels, aircraft, or
other modes of transport reasonably suspected of
carrying such cargoes, and to seize such cargoes that
are identified.
[Also: Principles for the Proliferation Security Initiative and
Proliferation Security Initiative--Paris Meeting of Core Participants,
September 3-4, 2003]
______
Prepared Statement of World Wildlife Fund, Brooks B. Yeager, Vice
President, Global Threats Program
1. The UN Law of the Sea (LOS) Convention establishes an important
foundation for the further development and implementation of effective
measures for sustainable ocean use. In important respects, the
Convention serves as a dynamic, living constitution for the oceans. The
Convention provides a legal framework for virtually all activities in
over two-thirds of the Earth's surface. It sets forth the rights and
obligations of nations in using the ocean and its resources. Agenda 21,
in its chapter 17 on oceans and coasts, recognizes LOS Convention
provisions as ``the international basis upon which to pursue the
protection and sustainable development of the marine and coastal
environment and its resources'' (17.1).\1\
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\1\ This statement is drawn from a more detailed statement
initially prepared by Clifton Curtis in 1995, updated in December 1998,
with the statement endorsed by WWF and more than 60 other U.S.-based
environmental organizations. See also: The United Nations Convention on
the Law of the Sea and the Marine Environment: A Non Governmental
Perspective, Clifton E. Curtis, Geo. Int'l Envtl. L. Rev. 7:739-743
(1995).
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2. Summarily stated, the LOS Convention covers navigation and
overflight, fishing and conservation of marine living resources, marine
mammals, the development of minerals in offshore and deep seabed areas,
marine environmental protection, marine scientific research, maritime
boundaries, the laying of submarine cables and pipelines, artificial
islands and seabed installations, piracy, illicit drug trafficking, and
dispute settlement. It substantially modifies the pre-existing ocean
law regime as codified in the four 1958 Geneva Conventions. It expands
coastal state sovereign rights over resources and other activities
related to the economic exploration and exploitation within a 200-mile
exclusive economic zone (EEZ). Where the legal continental shelf
extends beyond 200 miles, the coastal state enjoys sovereign rights
over seabed resource activities further offshore.
3. The benefits of the LOS Convention are substantial. They
outweigh any real or perceived drawbacks. The Convention's basic
obligations for all states to protect and preserve the marine
environment and to conserve marine living species, its call for the
further development of global and regional rules on these subjects, and
the framework of principles and objectives it establishes for that
development, represent significant steps forward. These benefits
advance global objectives in environmental protection and resource
conservation. It would be far more difficult to negotiate the
Convention's fundamental obligations on environmental protection and
species conservation in more limited-purpose regional and global
agreements.
4. Part XII of the LOS Convention (``Protection and Preservation of
the Marine Environment'') is the first comprehensive statement of
international law on this subject, going well beyond the 1958
conventions. It establishes unqualified obligations for all states to
protect and preserve the entire marine environment, subject to
compulsory, binding dispute settlement. All states are obliged to
prevent, reduce, and control marine pollution from all sources,
including the release of toxic, harmful or noxious substances.
5. The unique relationships established between the Convention and
other international marine agreements leverage the continual
development and upgrading of international rules and standards and of
recommended practices and procedures, which in turn are to form the
basis for national laws and regulations. The articles on marine
pollution control establish a symbiotic relationship between the LOS
Convention and other issue-specific environmental agreements, such as
the London Convention (LC), vessel-source pollution agreements like
MARPOL 73/78, and regional seas agreements.
6. Pursuant to Articles 210(6), 216, and 237 of the LOS Convention,
international rules and standards agreed pursuant to global agreements
such as those on vessel-source pollution, dumping, and pollution from
seabed development are generally considered applicable to states
parties to the LOS Convention. Those states must adopt and enforce laws
and regulations and other measures that are no less effective than the
global rules and standards. Moreover, the obligation to enact and
enforce national laws that are no less effective than these
international rules is an ongoing one as regards future changes in
relevant issue-specific treaty regimes. Governments may enact more
stringent laws for their own nationals, but the international rules and
standards establish a common floor.
7. The relationship between international rules and national laws
is, unfortunately, not as advanced in relation to land-based and
airborne sources (LBS) of marine pollution. Nonetheless, national LBS
measures must take into account any international LBS rules and
standards or recommended practices and procedures. Moreover, evolving
international measures, binding and non-binding, will inform and may be
taken into account as relevant rules of international law (as per Art.
31(3) of the Vienna Convention on the Law of Treaties) in related
dispute settlement proceedings. Such evolving measures include, among
others, the Global Program of Action adopted at the Washington
Conference for the Protection of the Marine Environment from Land-Based
Activities (23 October-3 November 1995).
8. Parts V and VII of the Convention govern the conservation,
protection, and management of marine species. They establish
fundamental obligations to conserve marine living resources. Article
65, for example, specifically exempts marine mammals in general and
cetaceans in particular from any general requirements of maximum usage
by providing that appropriate international organizations, such as the
IWC, may prohibit or limit the exploitation of marine mammals. In this
regard, the Earth Summit's Agenda 21 (17.62a and 17.90a) specifically
recognizes the IWC as the international organization responsible for
the conservation and management of whales.
9. Coastal states are required to conserve and manage EEZ living
resources to ensure that they are not endangered by over-exploitation,
and they are to cooperate with other states in managing species that
migrate into areas under other states' jurisdiction or the high seas.
All states have the duty to apply to their nationals fishing on the
high seas measures necessary to conserve living resources and to
cooperate with others in conserving and managing these resources. While
there are limitations on the application of compulsory binding dispute
settlement to national measures regarding EEZ fisheries, there are no
limitations regarding conservation measures enacted by states fishing
on the high seas.
10. Like those on marine environmental protection, the fisheries
provisions establish important principles for further development of
regional/global fisheries agreements. These provisions promote
sustainable use, based on ``best available'' scientific evidence, and,
as considered below, they set the stage for a more fully-articulated
ecosystem management approach. Today, this is best exemplified by the
ecosystem conservation standard set forth in the 1980 Convention on the
Conservation of Antarctic Marine Living Resources. Similarly, the 1995
UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks
(UN Fisheries Agreement) contains important advances, among them its
commitment to a precautionary approach to fisheries management, and its
strong compliance and enforcement measures for high seas areas--
measures that will help ensure effective application of that regime's
conservation measures.
11. Also like the marine environmental protection provisions,
general fisheries conservation and management obligations in the LOS
Convention are reinforced by specific requirements, practices, and
criteria established in other sub-regional, regional, and global
agreements. These ``generally recommended'' international minimum
standards must be taken into account in the conservation measures set
by coastal states and by states fishing on the high seas (Arts. 61.3
and 119.1). They also may be taken into account as relevant rules of
international law in related dispute settlement proceedings.
12. At the same time, substantial further developments, building on
LOS Convention provisions, are warranted. Clearly, the LOS Convention
does not, in our view, address all ocean uses adequately. For matters
such as the application of the precautionary approach, fisheries
conservation measures, protections against invasive species, land-based
sources of marine pollution, deep seabed mining, liability, and polar-
related initiatives, among others, there is a clear need for more
focused and more effective requirements.
13. Moreover, safeguards need to be taken to ensure that the
Convention's dispute settlement or other provisions are not used to
vitiate or curtail more stringent environment and conservation measures
and standards, such as those matters referenced in paragraph 12, above.
For that purpose, WWF believes that when United States deposits its
instrument of accession, it should attach a note clarifying the United
States' understanding that the Convention does not affect its right to
utilize such measures as it, in its sole discretion, considers
appropriate for the preservation of the marine environment, including
but not limited to the living resources thereof.
14. As stated at the outset of this statement, the LOS Convention
establishes an important foundation, or framework, for the further
development and implementation of effective global, regional, sub-
regional and national measures for protection, conservation and
sustainable use of the ocean. At the same time, substantial further
developments are warranted in relation to matters such as those
addressed above. Despite these areas requiring further attention, WWF
is firmly convinced, overall, that U.S. support for and accession to
the Convention is merited, serving as the foundation for further
progressive development of ocean-related international law and policy.
----------
Responses to Additional Questions Submitted for the Record
Responses of William H. Taft, IV, Legal Adviser, and Hon. John F.
Turner, Assistant Secretary of State, Bureau of Oceans and
International Environmental and Scientific Affairs, to Additional
Questions for the Record Submitted by Senator Richard G. Lugar
Question 1. Describe the circumstances under which the Convention
would provide for the United States to permit foreign fishers to fish
in waters subject to U.S. jurisdiction. Has the United States ever had
an unharvestable surplus of any relevant fish species that would be
subject to allocation under the treaty? Is the United States likely to
have any such surplus in the future?
Answer. During the 1970s and 1980s, U.S. fishermen did not have the
capacity to harvest all of the allowable catch in waters within 200
miles of our coast. Indeed, one of the driving forces behind the
Fishery Conservation and Management Act of 1976 was to develop U.S.
capacity and eventually to replace foreign fleets with American ones in
the U.S. 200-mile zone. The Act requires the regional fishery
management councils to determine the optimum yield from each fishery,
and then to estimate what part of that yield could be harvested by U.S.
fishermen (16 U.S.C. Sec. 1821(d), Sec. 1853(a) (3) and (4)). The
surplus, or ``total allowable level of foreign fishing'' (TALFF), is
then to be allocated to foreign fleets (16 U.S.C. Sec. 1821(e)). This
scheme is completely consistent with the treaty, which gives each
coastal State the discretion to determine the allowable catch within
its EEZ (article 61(1)), to ensure that resources are not overexploited
(article 61(2)), and to determine its capacity to harvest such
resources and to give other States access to any surplus under
reasonable conditions (article 62(2)); see also article 297(3)(a).
The United States achieved the goal of full capacity in the early
1990s. With one small exception (Atlantic mackerel and herring in
2001), no regional fishery management council has identified a TALFF in
more than a decade. The United States is unlikely to have any surplus
in the future, as American capacity to take most species far exceeds
the allowable catch.
Senator Stevens, in his testimony before the Committee, raised this
question in the context of Alaska fisheries, where the council sets an
``acceptable biological catch'' for each fishery, and then sets an
annual ``total allowable catch.'' The difference between the ABC and
the TAC is not considered surplus. The difference between the two is a
cushion dictated by conservative management, in accordance with article
61(2). Only if U.S. fishermen could not harvest the entire TAC would
the question of surplus arise (article 62(2)).
It should be noted that no other party to the Convention could
bring the United States to binding dispute resolution over the issue of
fisheries allocations within the U.S. exclusive economic zone (article
297(3)(a)).
Question 2. The Executive Branch's 1994 transmittal package
indicates that, at that time, the United States had Governing
International Fishery Agreements (GIFAs) in force with five nations.
Has the United States concluded any additional GIFAs since then? Is the
United States currently negotiating any additional GIFAs?
Answer. No new GIFAs have been negotiated or concluded since 1994.
Those in force are with Lithuania, PRC, and the Russian Federation. The
Russian GIFA, under which a mackerel and herring joint venture has been
conducted in Narragansett Bay, will expire December 31, 2003, unless it
is extended. A GIFA with Estonia expired June 30, 2003, and is in the
process of being renewed; an expired GIFA with Latvia might also be
renewed.
Question 3. How, if at all, would the Convention require the United
States to change its regulation of fisheries under the Magnuson-Stevens
Fishery Conservation and Management Act?
Answer. No change would be required. The Act fully enables the
United States to exercise its rights and to implement its obligations
with respect to the provisions of the Convention relating to fisheries.
U.S. law and practice are also fully consistent with the provisions of
the Convention relating to fishing on the high seas and dealing with
particular categories of species, such as straddling fish stocks and
anadromous stocks.
Question 4. Beyond the specific oceans policy advantages of joining
the Convention mentioned in the administration's testimony, are there
also more general advantages for U.S. policy to joining the Convention
at this time?
Answer. Yes. We believe that U.S. accession to a major multilateral
treaty such as the Law of the Sea Convention would yield foreign policy
benefits. U.S. adherence would signal that we remain engaged in
multilateral regimes that address important environmental and economic
issues. U.S. accession would also demonstrate to the international
community that, when the United States asks for a treaty to be modified
to address particular concerns and those modifications are made, we
will join the treaty.
Question 5. What issues are raised for U.S. interests by the claim
filed by Russia with the Commission on the Limits of the Continental
Shelf to define the extent of its outer continental shelf? How would
being party to the Convention affect the ability of the United States
to protect such interests?
Answer. As reflected in the Convention, a coastal State exercises
sovereign rights over the continental shelf for the purpose of
exploring it and exploiting its natural resources, including, e.g., oil
and gas. The Convention permits a coastal State to claim continental
shelf beyond 200 miles from its baselines, provided it meets certain
criteria. For example, the continental margin does not include the deep
ocean floor with its oceanic ridges.
A coastal State claiming shelf beyond 200 miles from its baselines
is to make a submission to the Commission on the Limits of the
Continental Shelf, which makes recommendations to coastal States
related to establishing the outer limits of their shelf. To the extent
a coastal State establishes its outer limits based on such
recommendations, its outer limits are final and binding.
The United States has an obvious stake in the effective functioning
of the Commission, which only recently received its first submission.
The United States expects to submit scientific evidence to support its
own extended shelf, e.g., off the Atlantic Coast, in the Bering Sea,
and in the Arctic Ocean off Alaska. We also have a strong interest in
ensuring that the submissions of other States meet the Convention's
criteria. Finally, the proper interpretation and application of the
Convention's provisions are important for the stability and general
acceptability of the law of the sea regime reflected in the Convention.
Specifically with respect to Russia's submission, the United States
is concerned that it included certain extensive ridges in the Arctic
Ocean that we do not consider meet the Convention's criteria for the
continental shelf. The United States submitted its views, with
supporting documentation, to the Commission (posted on the CLCS Web
site). The resolution of this issue has implications for natural
resource development, scientific research, and strategic interests in
the Arctic.
By becoming party to the Convention, the United States would be
better able to protect its interests in several ways. U.S. comments on
other parties' submissions to the Commission would carry added weight.
The United States would be able to nominate a commissioner, whose
expertise would help shape the Commission's recommendations. Finally, a
U.S. submission of scientifically sound information on the outer limits
of the broad continental shelf off our coasts would enable us to
establish our outer limits as final and binding in accordance with
article 76(8).
Question 6. What effect, if any, would the Convention have on the
ability of the United States to implement its existing regulations
requiring oil tankers calling at U.S. ports to be double-hulled?
Answer. The Convention does not affect our ability to implement the
provision of the Oil Pollution Act of 1990 (OPA 90) that requires oil
tankers intending to enter a U.S. port to be fitted with a double hull,
in accordance with a statutorily established phase-in schedule.
Concerning U.S. tankers, article 211(2) of the Convention in fact
affirmatively calls upon States to adopt laws and regulations for the
prevention, reduction, and control of pollution of the marine
environment from vessels flying their flag or of their registry.
Concerning foreign tankers, article 211(3) specifically recognizes the
right of port States to establish their own requirements relating to
vessel source pollution as a condition of entry of foreign vessels into
their ports or internal waters or for a call at their offshore
terminals. It obligates States to give due publicity to any such
requirements and to communicate them to the International Maritime
Organization (IMC).
Therefore, implementation of the double hull provisions in OPA 90
for oil tankers, whether foreign-flagged or domestic, is fully
consistent with and supported by the Convention.
Question 7. When does the administration expect to submit to the
Congress proposed implementing legislation for Annex VI of the
International Convention for the Prevention of Pollution from Ships?
Answer. The draft implementing legislation for Annex VI is
scheduled to undergo interagency review and clearance in December 2003.
Pending resolution of any issues identified in the review and
procedural considerations for formal submittal of the legislation, we
expect the draft legislation will be ready for consideration by
Congress in early 2004.
______
Responses of Rear Admiral John E. Crowley, Chief Counsel and Judge
Advocate General, U.S. Coast Guard, to Additional Questions for the
Record Submitted by Senator Joseph R. Biden, Jr.
article 27
Question 1. Article 27 indicates that a coastal State has criminal
jurisdiction over a foreign ship that is passing through the
territorial sea if the consequences of the crime extend to the coastal
State.
How is this interpreted with respect to transnational crimes
that we believe affect all states, like terrorism and the
illicit trafficking of people and arms?
Is there any corollary right on the high seas or in the
contiguous zone? If not, are there other legal regimes that do
provide such a right?
Answer. Article 27, concerning criminal jurisdiction on board a
foreign ship, is taken almost verbatim from Article 19 of the 1958
Territorial Sea Convention, to which the United States is a party. As
such, it continues the codification of a longstanding principle of
international law.
This Article attempts to strike a reasonable balance between the
criminal jurisdiction of the coastal State and that of the flag State.
On the one hand, States with shipping interests wish to suffer as
little disruption or interference as possible as their vessels transit
through the territorial waters of another State. On the other hand,
coastal States may regard certain actions by or aboard the transiting
ship as so inimical to their interests that they require invocation of
their criminal laws. Article 27 is the result of international
negotiation that resolves these competing interests.
Article 27 sets forth several bases for coastal State exercise of
criminal jurisdiction on board a foreign ship passing through the
territorial sea, including crimes where the consequences of the crime
extend to the coastal State and where the crime was of a kind to
disturb the peace of the country or the good order of the territorial
sea. Depending upon the particular facts, there are a host of criminal
statutes primarily contained within Title 18 of the United States Code
that could be applied to prosecute those involved in terrorist acts and
the trafficking of persons and arms in our territorial sea.
On the high seas, there are various circumstances under which the
United States could exercise jurisdiction over a foreign flagged
vessel, including, among others, where the flag State consents, or in
situations involving acts of piracy, unauthorized broadcasting, or
slavery. In the contiguous zone, a coastal State may, without flag
State consent, exercise the control necessary to prevent infringement
of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea.
It should also be noted that the Convention does not affect the
inherent right of self-defense under international law.
article 99: slave trader ship boardings
Question 2. Article 99 allows for the boarding of ships on the high
seas if they are engaged in the slave trade.
Is this right being used to effectively help stem the tide
of trafficking of women and girls? If not, are there other
legal regimes that do provide such a right?
Is there any similar right on the high seas if the ship is
thought to be preparing for an act of terrorism? If not, are
there other legal regimes that do provide such a right?
Answer. Article 99 is identical to Article 13 of the High Seas
Convention and relates to the Convention to Suppress the Slave Trade
and Slavery of September 25, 1926, 46 Stat. 2183, TS No. 778, 2 Bevans
67, 60 LNTS 253; the Protocol of December 7, 1953 Amending the Slavery
Convention of September 25, 1926, 7 UST 479, TOAS No. 3532, 182 UNTS
51; and the Supplementary Convention on the Abolition of Slavery, the
Slave Trade and Institutions and Practices Similar to Slavery of
September 5, 1956, 18 UST 3201, TIAS No. 6418, 266 UNTS 3. This
obligation is implemented in 18 U.S.C. Sec. Sec. 1581-88 (1982), and
gives effect to the policy enunciated by the Thirteenth Amendment to
the Constitution of the United States. The Slavery Convention, Amending
Protocol, and Supplementary Convention do not authorize non-consensual
boarding of foreign vessels. Nevertheless, Article 22(1) of the High
Seas Convention authorized non-consensual boarding by a warship where
there exist reasonable grounds for suspecting that a vessel is engaged
in the slave trade. Article 110(1)(b) of the LOS Convention reaffirms
this approach. Given that the instruments cited above authorize
boarding of ships that are engaged in the slave trade, those provisions
can be used to authorize boarding of ships used to traffic any person
for any type of forced labor.
The Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, which is a supplement to the UN
Convention Against Transnational Crime, includes ``slavery or practices
similar to slavery'' as a form of ``exploitation'' that the Protocol
seeks to prevent. See Article 3(a), UN Doc. A/55/383, pages 54-55
(2000). This Protocol does not contain provisions on the boarding of
ships in international waters. In addition, since this Protocol (1)
addresses a wide range of human exploitation and (2) has not yet
entered into force, the non-consensual boarding provisions of Article
110 are dependent upon the particular facts.
It should also be noted that the Protocol Against the Smuggling of
Migrants by Land, Sea and Air, another supplement to the UN Convention
against Transnational Organized Crime, provides a framework for States
parties to request and obtain authorization to stop and board vessels
engaged in the smuggling of migrants by sea. Additionally, any State
may request from any other State on an ad hoc basis authorization to
board and search the other State's vessels on the high seas. Thus, the
ship-boarding provisions of Migrant Protocol could be used if the
persons being transported are believed to be smuggled migrants. Because
many, if not most, trafficking victims are smuggled migrants, the ship-
boarding provisions of the Migrants protocol could be effective tool in
identifying trafficking victims and combating trafficking in persons.
With respect to ships on the high seas that are preparing for an
act of terrorism, the Convention does not affect the right of self-
defense under international law.
article 19(2)
Question 3. Article 19(2) provides that a foreign ship shall be
considered prejudicial to the peace, good order, or security of the
coastal State if it engages in any of the enumerated activities.
Who determines whether the foreign ship is undertaking any
of the proscribed activities?
Would, in the case where the ship's purpose was clearly a
terrorist act or an act threatening to the coastal State, the
provision of subparagraph (a) apply?
Answer. The Convention does not accord priority to either the
coastal or flag State in terms of determining whether a ship is engaged
in one or more of the activities set forth in Article 19(2). To the
extent that a coastal State sought to assert authority beyond that
provided in the Convention with respect to innocent passage, for
example, it would need to conclude that a ship was engaged in
activities rendering its passage non-innocent within the meaning of
Article 19. As appropriate, a coastal State that questions whether the
particular passage of a ship through its territorial sea is innocent
might inform the ship of the reasons why it questions the innocence of
the passage and provide the ship with an opportunity to clarify its
intentions or change its conduct in a reasonably short period of time.
As to the applicability of Article 19(2)(a) to a terrorist act or
act threatening the use of force, this subparagraph would likely apply,
recognizing that it would ultimately depend upon the precise facts.
It should also be noted that nothing in the Convention restricts
the inherent right of individual or collective self-defense or rights
during armed conflict, and the administration is recommending that the
United States express such an understanding.
______
Responses of Mark T. Esper, Deputy Assistant Secretary of Defense for
Negotiations Policy, to Additional Questions for the Record Submitted
by Senator Joseph R. Biden, Jr.
Question 1. Please elaborate on the basis of your assertion, on
page 4 of your testimony, that it is ``clear'' that whether an activity
is ``military'' is for each State Party to determine for itself.
Answer. Article 298(1) (Section 3 of Part XV) of the Convention
unambiguously allows a State to ``declare in writing that it does not
accept any one or more of the procedures provided for in section 2'' of
Part XV with respect to disputes involving, among other things,
military activities and certain law enforcement activities.
The determination of whether an activity is of a military nature
inherently involves subjective as well as objective elements and the
evaluation of potentially sensitive and important national security
activities and information. Whether a State's particular activity
constitutes a ``military'' activity is thus a determination that the
State Party undertaking the activity is uniquely situated to make.
Question 2. I understand that, during the last administration, an
analysis was prepared by the General Counsel of the Department of
Defense regarding the effect of the Convention on intelligence
activities. Please provide a copy of this analysis.
Answer. The document to which you refer was prepared in response to
a classified inquiry by the Chairman and Vice Chairman of the U.S.
Senate Select Committee on Intelligence. We will communicate with you
separately regarding this document.
______
Responses of Admiral Michael G. Mullen, Vice Chief of Naval Operations,
Joint Chiefs of Staff, Department of the Navy, to Additional Questions
for the Record Submitted by Senator Joseph R. Biden, Jr.
Question 1. Article 50 states that activities in the EEZ must be
done with ``due regard to the rights and duties of the coastal State
and shall comply with the laws and regulations adopted by the coastal
States . . .''
a. What happens when a coastal State claims that military
exercises are being performed that do not meet this criteria?
b. In particular, if a coastal State's environmental
protection laws conflict with the operation of military
equipment, how is this resolved?
Answer. First, it is the duty of the flag State, not the right of
the coastal State, to enforce the ``due regard'' obligation to comply
with laws and regulations adopted by a coastal State.\1\ The Convention
reflects the particular sensitivity of military activities and the
special status of warships and other sovereign immune vessels (see,
e.g., Articles 95, 236 and 298). Consistent with U.S. policy, the
Department of Defense operates with the appropriate ``due regard.'' The
Department dedicates the resources necessary to operate in a
responsible manner, including from an environmental point of view, as
well as to set a standard that other nations will follow.
The concept of ``due regard'' in the Convention balances
obligations of both the coastal State and other States in the exclusive
economic zone (see, e.g., Articles 56 and 58). This balance permits
coastal States to adopt certain measures to protect the marine
environment close to their shores and the right of a flag State to
exercise its high seas freedoms in waters beyond the territorial sea.
Article 58 preserves recognized high seas uses including the full
range of military activities, such as anchoring, launching and, landing
of aircraft, operating military devices, intelligence collection,
exercises, operations, and conducting military surveys. Under Article
58, all States have the right to conduct military activities within the
exclusive economic zone, and may do so consistent with the obligation
to have due regard to coastal State resource and other rights, as well
as the rights of other States as set forth in the Convention.
Despite the status of warships and other sovereign immune vessels
as reflected in the convention (see, e.g., Articles 95, 96 and 236), in
accordance with U.S. policy, the Department of Defense has emphasized
that protection of the marine environment is an integral component of
the national security strategy. This commitment is consistent with the
obligation of all parties, under Article 236, to ensure that their
public vessels and aircraft operate in a manner consistent with the
Convention, insofar as is reasonable and practicable and does not
impair operations or operational capabilities of such vessels and
aircraft. As discussed above, the Department of Defense had dedicated
significant resources to operate in an environmentally sound manner
worldwide.
Question 2. What would be the difference in scope and duration of
the biennial reviews and the comprehensive evaluations you describe in
your testimony?
Answer. The question of periodic reviews of the Convention involves
matters of national policy on which I would defer to our civilian
leadership.
Question 3. What are the advantages and disadvantages of a sunset
provision that you reference on page 10 of your testimony?
Answer. The advantages and disadvantages of a sunset provision is a
matter of national policy on which I would defer to our civilian
leadership.
--------------
\1\ U.S. Commentary on the LOS Convention, Sen. Treaty Doc. 103-39,
at 24, 34 ILM 1411 (1995), Appendix 7.
______
Responses of Hon. John F. Turner, Assistant Secretary of State, Bureau
of Oceans and International Environmental and Scientific Affairs, to
Additional Questions for the Record Submitted by Senator Joseph R.
Biden, Jr.
Question 1. What is the purpose of the Commentary regarding Article
10(6) (set forth at pages 11-12 of Treaty Doc. 103-39) regarding the
Delaware and Chesapeake Bays?
Answer. The referenced portion of the Commentary notes that, while
the United States in the past has claimed Delaware Bay and the
Chesapeake Bay as historic bays, these bodies of water satisfy the
criteria for juridical bays reflected in Article 10 of the Convention.
The U.S. claim to the waters of the Delaware and Chesapeake Bays
dates back to the late 17th and 18th centuries. See 4 Whiteman, Digest
of International Law 235 (1965). Prior to 1958 there was no accepted
international rule, except the law pertaining to historic bays, as to
the circumstances in which the waters of a bay could be considered as
internal waters.
Article 7 of the 1958 Convention on the Territorial Sea and the
Contiguous Zone provides that the waters of a bay meeting specified
geographic criteria (including a mouth no more than 24 nautical miles
wide) may be considered internal waters. Article 10 of the 1982
Convention similarly sets forth criteria for considering the waters of
a bay as internal waters.
The Delaware and Chesapeake Bays have mouths 10 and 12 nautical
miles wide respectively, and meet the other criteria for a juridical
bay set forth in Article 10. Thus, these waters are indisputably
internal waters of the United States.
Question 2. The Commentary also indicates that there is a
``prohibition on regional agreements in areas that restrict the
exercise of these rights and freedom by third States without their
consent.''
a. What areas are referred to?
b. How does this affect regional agreements aimed at
controlling immigration flows or countering terror?
Answer. The quotation is apparently from page 13 of the Commentary,
which includes ``the prohibition on regional arrangements in areas that
restrict the exercise of these rights and freedoms by third States
without their consent'' as one of five elements of the Convention
essential to maintaining the balance between freedom of navigation and
protection of offshore areas.
This passage provides one example of the type of agreement that
would not be consistent with Article 311(3) of the Convention. That
Article, which reflects customary international law of treaties, allows
two or more States Parties to conclude agreements modifying or
suspending the operation of provisions of the Convention; however, such
agreements may not, among other things, affect the enjoyment by other
States Parties of their rights or the performance of their duties under
the Convention.
For example, coastal States bordering an international strait could
enter into an agreement establishing a regime to reduce pollution from
ships in the strait, but could not include any measures that, e.g., had
the practical effect of denying or impairing the right of transit
passage.
Regional agreements and arrangements aimed at immigration control
can be, and have been, constructed within the framework of
international law of the sea, as reflected in the Convention. (It
should be noted that, among other things, the Convention accords
coastal States considerable control over loading and unloading of
persons. See Articles 19(2)(g), 21(1)(h), 33(1)(a), and 42(1)(d).)
Likewise, regional and international arrangements for effective
counter-terrorism measures can be, and have been, constructed within
the framework of the international law of the sea as reflected in the
Convention.
Question 3. Article 61 of the Convention says that a coastal state
shall determine the allowable catch in its EEZ. It also makes reference
to determining the ``maximum sustainable yield, as qualified by
relevant environmental and economic factors.''
a. What method does the United States use to determine
allowable catch in the EEZ?
b. How does the United States define maximum sustainable
yield? Is it consistent with the provision in Article El?
c. Is there any way in which another nation could use the
Convention to change or alter U.S. determinations and
definitions in this area?
d. What other methodologies are available to measure the best
method of protecting fisheries? (For example some have
suggested that the model must be based on fishing below the
maximum sustainable yield as essential due to advances in
technology and increased consumer demand).
e. Would other methodologies be allowed under the Convention?
Answer. The Regional Fishery Management Councils established by the
Magnuson-Stevens Fishery Conservation and Management Act, in
conjunction with the Secretary of Commerce, determine the allowable
catch for EEZ fisheries. The allowable catch must be consistent with
the ``optimum yield' specified in an approved fishery management plan.
16 U.S.C. 1853(a)(3). Optimum yield is based on maximum sustainable
yield, as reduced by any relevant economic, social, or ecological
factor. 16 U.S.C. 1802(28). The Secretary of Commerce issues
regulations to implement an approved fishery management plan or
amendment.
Maximum sustainable yield (MSY) ``is the largest long-term average
catch or yield that can be taken from a stock or stock complex under
prevailing ecological and environmental conditions.'' 50 C.F.R.
600.310(c)(1)(i). Article 61 does not define MSY, but the definition in
the NOAA guidelines quoted above is the generally accepted one.
Article 61 gives each coastal State the discretion to determine the
allowable catch within its EEZ, to ensure that resources are not
overexploited, and to determine its capacity to harvest such resources.
No other party to the Convention could bring the United States to
binding dispute resolution with respect to the living resources in its
EEZ, including its discretionary powers for determining the allowable
catch, its harvesting capacity, the allocation of surpluses to other
States, and the terms and conditions established in its conservation
and management laws and regulations. Article 297(3)(a). Another party
could, however, request submission of a dispute on certain of these
issues to conciliation. Article 297(3)(b).
With respect to other methodologies for protecting fisheries, the
Sustainable Fisheries Act of 1996, Pub.L. 104-297, recognized that
setting catch levels above those that would produce MSY, as allowed in
the original Magnuson-Stevens Act, allowed too much fishing effort and
sometimes resulted in overfished stocks. The definition of ``optimum
yield'' was amended so that the allowable catch cannot be set above
MSY.
NOAA guidelines (50 C.F.R. 600.310(c) (2) and (3)) offer numerous
options for estimating MSY through choice of an MSY control rule (e.g.,
removal of a constant catch; removal of a constant fraction of the
biomass; allowance of a constant level of escapement; variance of the
fishing mortality rate as a function of stock size). In mixed-stock
fisheries, or where there is insufficient data, an indicator or proxy
MSY is acceptable. The guidelines also list a number of factors that
can be used to set the allowable catch (``optimum yield'') below MSY.
These and other methodologies are acceptable under Article 61.
Article 61(3) provides that measures are to be designed to maintain or
restore fish populations to levels that can produce MSY, but lists many
factors that may qualify that requirement, in either direction. Other
paragraphs in the same article require managers to take into account
the best scientific evidence available, to consider the effects of the
fishery on bycatch species and predator-prey relationships
(``associated or dependent species''), and to ensure that living
resources are not over-exploited. Article 61 thus gives coastal States
a great deal of discretion in methods of setting allowable catches and
methods of measuring the success of management measures.
Question 4. Article 62 of the Convention indicates a coastal State
``shall . . . give other States access to the surplus of allowable
catch.''
a. Who determines if there is surplus allowable catch?
b. How would another State enforce its right to that surplus?
Answer. The coastal State determines if there is surplus allowable
catch. Article 62(2). In the United States, the Regional Fishery
Management Council or the Secretary of Commerce makes that
determination. 16 U.S.C. 1853(a)(4). Another State cannot force the
United States to identify surplus or to allocate it (see Answer 3
above).
Question 5. Article 210(5) requires the express prior approval of
the coastal State for dumping within the territorial sea and the EEZ or
the continental shelf. The provisions of the Ocean Dumping Act (e.g.,
33 U.S.C. 1411) with regard to material outside the United States
extend only to the territorial sea and the contiguous zone. What legal
authority exists for the United States to implement this provision?
Answer. Article 210(5) does not require a coastal State to have a
mechanism in place to grant its approval for dumping in the EEZ. To the
extent a coastal State has not exercised its authority to grant such
approval, dumping would not be permitted. The Ocean Dumping Act
currently applies to ocean dumping in the EEZ (and beyond) of matter
transported from the United States for the purpose of dumping, or of
matter transported from any location by a vessel or aircraft registered
in the U.S. or flying the U.S. flag. It also prohibits the dumping of
industrial waste and sewage sludge in the territorial sea and EEZ. The
President has inherent authority to grant permission on behalf of the
United States but, of course, cannot waive any applicable restriction
under domestic law.
Question 6. Article 210(6) requires that national laws, regulations
and measures to implement that article shall be ``no less effective''
than ``global rules and standards'' in this regard. What is the meaning
of the term ``global rules and standards'' as used in this paragraph?
Answer. The analysis of whether there are ``global rules and
standards'' needs to be carried out on a case-by-case basis, taking
into account a variety of factors, such as: whether the rule/standard
has been formally adopted; whether it is in force; the number and type
of the States adopting the standard; the extent to which the group
represents States whose vital interests are affected by the standard;
and State practice. The global regime addressing pollution of the
marine environment by dumping is long-established; the Convention on
the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter (the London Convention) governs the ocean dumping of all wastes
and other matter.
Question 7. Article 211(2) requires States to adopt laws and
regulations for the prevention, reduction and control of pollution of
the marine environment from vessels flying their flag, and that such
laws and regulations shall ``at least have the same effect as that of
generally accepted international rules and standards established
through the competent international organization or general diplomatic
conference.'' Does the term ``generally accepted international rules
and standards'' have a different meaning than the term ``global rules
and standards'' in Article 210(6)? Please elaborate.
Answer. Despite the difference in phraseology between ``generally
accepted international rules and standards'' and ``global rules and
standards,'' it does not appear from the negotiating history or
relevant commentary that a legal distinction was intended. It appears,
rather, that the absence of the term ``generally accepted'' before
``global rules and standards'' in the article on pollution by dumping
reflected the fact that the 1972 London Convention already covered the
relatively narrow (compared to vessel source pollution) field of ocean
dumping. With respect to new ocean dumping rules and standards, the
same analysis would apply as for generally accepted international rules
and standards.
______
Responses of Hon. William H. Taft, IV, the Legal Adviser, Department of
State, to Additional Questions for the Record Submitted by Senator
Joseph R. Biden, Jr.
Question 1. On September 19, 1996, Secretary of State Christopher
wrote to Chairman Helms to urge favorable action on the Convention, and
stated ``we have reviewed existing laws and have determined that
implementing legislation is not necessary before United States
accession.''
a. Does the Executive Branch continue to support the
statement by Secretary Christopher?
b. Please elaborate on the basis of this statement by
Secretary Christopher. Describe the scope of the review
undertaken, the period of time during which the review was
conducted, and whether it was conducted on an inter-agency
basis, by each relevant agency separately, or by the Department
of State only.
c. Seven years have passed since Secretary Christopher's
letter was sent to the committee. Has a review of domestic law
as compared to the obligations of the Convention been conducted
since 1996? If so, please elaborate. If not, why not?
d. Did the Bush administration's review of the Convention in
2001 or in the last year (as described by Mr. Esper) focus, in
any respect; on the current domestic legal framework for
implementing the Convention? Please elaborate.
e. Please provide a copy of the 1996 review, and any
subsequent review.
Answer. The Executive Branch continues to consider that
implementing legislation is not necessary before U.S. accession. Given
that the U.S. is a party to the 1958 law of the sea convention, that
the U.S. heavily influenced the development of the 1982 Convention, and
that the U.S. has since 1983 been acting in accordance with the
provisions of the Convention governing traditional uses of the oceans,
U.S. law and practice are already compatible with the Convention.
Between the time the Convention was transmitted to the Senate in
1994 and Secretary Christopher's letter in 1996, Executive Branch
agencies reviewed the provisions of the Convention in light of U.S. law
and practice and concluded that implementing legislation was not
necessary before U.S. accession. The involvement of particular agencies
depended upon the provisions in question. NOAA was particularly
involved, for example, in considering whether U.S. obligations related
to deep seabed mining could be met under the Deep Seabed Hard Minerals
Resource Act. Concerning Part XII on protection of the marine
environment, many agencies were engaged in an interagency review led by
the State Department.
The Administration is considering whether Article 39 of Annex VI of
the Convention (concerning the Sea-bed Disputes Chamber) needs to be
implemented through legislation and may be proposing an understanding
in this regard. In any event, given the current undeveloped state of
deep seabed mining, such legislation would not be necessary before U.S.
accession.
Although the Administration's decision to support the Convention
did not specifically address the current domestic legal framework, its
support for the Convention was facilitated by the longstanding ability
of the United States to act in accordance with the Convention within
the framework of U.S. domestic law and practice.
Question 2. In submitting the Convention to the Senate, the
Executive Branch provided an extensive Commentary on the Convention.
a. Is this Commentary to be considered an authoritative
representation of the Executive Branch insofar as any
information in the Commentary is directing to the meaning and
legal effect of a term or provision of the Convention?
b. Has the Commentary been reviewed since 1994 by the
Executive Branch? Is it still accurate, or does it require
modification? If it requires modification, please provide it to
the committee.
Answer. Generally, the Commentary appropriately analyzes and
interprets the Convention. The Administration has engaged in a detailed
multi-agency review that has resulted in an initial package of proposed
declarations and understandings that further refine the Commentary; the
Administration's proposed declarations and understandings will prevail
over the Commentary in the case of any inconsistency.
In addition, certain factual points have been overtaken by more
recent events. For example, there are now 145 Parties to the
Convention; additional agreements have been concluded (e.g., Annex VI
to the MARPOL Convention, which is before the Senate as Treaty Doc.
108-7); and the United States claimed a 24-nautical mile contiguous
zone by Presidential Proclamation 7219, 2 September 1999.
It should also be noted that the GPO print of the treaty texts and
the Commentary contained some typographical errors and omitted the text
of Article 19 of Annex VI (Expenses of the Tribunal); these errors were
corrected in the version contained in the Dispatch Supplement of
February 1995.
Question 3. Does the Executive Branch regard any of the provisions
of the Convention as self executing? If so, which provisions? Please
elaborate.
Answer. The Convention does not itself create private rights of
action in U.S. courts. (Although Article 39 of Annex VI might be read
to create such a right directly, the Administration's view is that it
does not. However, it would obligate the United States to render Sea-
bed Disputes Chamber decisions enforceable in U.S. courts, including
through private causes of action. As noted in the answer to Question 1,
the Administration is considering an understanding concerning this
provision.)
Whether a Convention provision would otherwise be self-executing,
including whether it would be directly enforceable as U.S. law, would
depend upon the provision in question, as well as upon whether the
Senate and Executive Branch express a view concerning such provision.
In this connection, some provisions of the Convention would clearly not
be self-executing, such as those contemplating future action by a State
Party or those addressing administrative or institutional matters. The
Administration would consider as self-executing those provisions
setting forth various privileges and immunities to be accorded by
States Parties (such as Articles 177-183); such provisions are
generally treated as self-executing, and current U.S. law would not
otherwise be adequate for the U.S. to implement its obligations under
such provisions.
With respect to other provisions, the Administration will be
proposing language for the Senate's resolution of advice and consent
that would ensure, among other things, that criminal defendants in U.S.
courts, such as those accused of environmental pollution, will not be
able to invoke the Convention's provisions.
Question 4. Does the Executive Branch believe that any provisions
of the Convention may pre-empt state laws? If so, which provisions?
Please elaborate.
Answer. Most of the Convention addresses marine areas that are
beyond the purview of the states. Within the territorial sea, the
Convention contains certain obligations, such as with respect to
innocent passage of foreign flag vessels. Such provisions are
reflective of the 1958 Geneva Convention on the Territorial Sea and the
Contiguous Zone, to which the United States is already a party, and
customary international law. We are not aware of any state laws that
infringe upon freedom of navigation in the territorial sea.
Concerning Article 39 of Annex VI, while this provision might be
read to be directly enforceable some instances, potentially preempt
state contract would otherwise be applicable to deep seabed mining
transactions, the Administration does not consider it directly
enforceable. However, it would obligate the United States to make Sea-
Bed Disputes Chamber decisions enforceable through some means, e.g.,
implementing legislation, and enforceable Sea-bed Disputes Chamber
decisions would prevail over any otherwise applicable state laws. As
noted in the answer to Question 1, the Administration is considering an
understanding concerning the provision.
Question 5. Does the Executive Branch expect to issue any Executive
Orders following U.S. accession to the Convention in order to implement
U.S. obligations under the Convention? If so, please elaborate on the
subjects that would be addressed in such Executive Orders and the
relevant obligations of the Convention that would be covered by such
Orders.
Answer. The Administration does not have current plans to issue any
particular Executive Orders following U.S. accession. The Executive
Branch may decide over time to make more formal various mechanisms for
ensuring that U.S. Executive Branch actions are consistent with the
provisions of the Convention; however, if so, there are a variety of
mechanisms from which to choose, ranging from informal guidance
documents to more formal Executive Orders.
Question 6. Does the Executive Branch believe that any provisions
of the Convention provide a private right of action? If so, which
provisions?
Answer. The Convention does not itself provide for private rights
of action in U.S. courts. Article 187 provides for access by private
parties to the Sea-bed Disputes Chamber. Article 292(2) would not
preclude a private person from seeking the prompt release of a vessel
on behalf of the flag State in an international tribunal, as set forth
in Article 292(1). As noted in the answer to Question 3, although
Article 39 of Annex VI might be read to create such a right directly,
the Administration's view is that it does not; however, it would
obligate the United States to render Sea-bed Disputes Chamber decisions
enforceable, including through private causes of action, through some
means, e.g., implementing legislation. As noted in the answer to
Question 1, the Administration is considering an understanding
concerning this provision.
Question 7. Which agencies and departments of the Executive Branch
will have the lead responsibility for interpreting and enforcing the
provisions of the Convention? Please provide details by Part of the
Convention.
Answer. As has been the case during the past two decades of
following the Convention as a matter of policy, numerous agencies and
departments are actively engaged in developments regarding, and
implementation of, the Convention's provisions. We would expect this to
continue.
State will continue to lead U.S. delegations to international
negotiations and meetings regarding the Convention, as well as
coordinate U.S. positions on many aspects of the Convention. NOAA has a
lead role in the elaboration of international rules regarding deep
seabed mining, as well as domestic implementation; NMFS has a lead role
regarding fisheries management; State and DOD have lead roles in
implementing the diplomatic and operational components of the U.S.
Freedom of Navigation Program, which enforces navigational provisions
of the Convention; NOAA, Coast Guard, EPA, and Justice have lead roles
regarding marine pollution regulation and enforcement; and Coast Guard
and Justice also have lead roles regarding other types of enforcement,
e.g., drugs.
Specifically regarding non-military actions that could have
implications under international law, including the law of the sea
(such as enforcement actions against foreign flag vessels), existing
interagency mechanisms are routinely employed to ensure full
consideration of international law obligations of the United States.
Question 8. What does the Executive Branch understand to be the
meaning of the relevant ``generally accepted international rules or
standards'' under Article 21(2)?
Answer. The analysis of whether there is a ``generally accepted''
international rule or standard needs to be carried out on a case-by-
case basis, taking into account a variety of factors, such as: whether
the rule/standard has been formally adopted; whether it is in force;
the number and type of the States adopting the standard; the extent to
which the group represents States whose vital interests are affected by
the standard; and State practice.
Question 9. How does the Executive Branch interpret the prohibition
on laws relating to the ``design, construction, manning or equipment of
foreign ships'' in Article 21(2) with respect to environmental
regulation of matters like contaminated ballast water and double-hulls?
Answer. A double-hull requirement would be considered a law
relating to the ``design, construction, manning or equipment'' (or
``CDEM'') of a ship. With respect to potential restrictions on the
discharge of ballast water for ships transiting the territorial sea,
there are many types of restrictions that would, in fact, not apply to
the design, construction, manning or equipment of a ship. For example,
we would not consider prohibitions on the discharge and/or uptake of
ballast water to apply to CDEM of a ship. Thus, the United States could
potentially establish no-discharge zones and/or specially designated
discharge zones for vessels in transit through the territorial sea or
impose a requirement that such ships perform ballast water exchange
prior to discharge, without hampering innocent passage. Moreover, most
foreign vessels in the U.S. territorial sea are traveling to or from
U.S. ports; the United States can and does impose CDEM restrictions as
a condition of entry to U.S. ports.
Question 10. Is there any conflict between the Convention and
enforcement of the Oil Pollution Act of 1990 with regard to, in
particular, the requirements related to double-hulled vessels? If so,
what is it?
Answer. There would be no inconsistency with the Convention
concerning the double-hull requirement of the Oil Pollution Act of
1990. The House Conference Report indicates that section 3703(a) ``. .
. is not intended to apply to vessels transiting U.S. waters or
transiting the Exclusive Economic Zone . . . .''
Question 11. Article 33 allows coastal states to exercise the
control necessary in the contiguous zone to prevent and punish
infringement of its ``customs, fiscal, immigration or sanitary laws and
regulations.''
a. How does the United States interpret ``sanitary laws,'' as
used in this article?
b. Does ``sanitary laws'' include all the direct and indirect
protection of human health and the marine environment?
c. How does the United States interpret ``customs and fiscal
laws,'' as used in this article?
Answer. The term ``sanitary laws'' is not a defined term in the
Convention. It tracks Article 24 (the contiguous zone provision) of the
1958 Territorial Sea and Contiguous Zone Convention, to which the
United States is already a party. The term does not have as wide a
scope as all laws aimed at the protection of human health and the
marine environment, although there are likely areas of overlap.
Regarding the term ``customs and fiscal laws,'' this is also not a
defined term but would include, for example, illegal importation of
drugs.
Question 12. Article 56 provides a coastal state the right to
protect and preserve the marine environment in the EEZ. Article 211,
paragraphs 5 and 6, regulating pollution in the EEZ provide specific
rules for regulating pollution in the EEZ.
a. Do any current U.S. laws regulate pollution by ships in
the EEZ?
b. Does the Executive Branch anticipate that, within the
first five years of U.S. accession to the Convention, it would
invoke the provisions of Article 211(6)(a)?
Answer. Several U.S. laws, e.g., the Clean Water Act (as amended by
the Oil Pollution Act of 1990), the MPRSA, the Act to Prevent Pollution
from Ships, and the Outer Continental Shelf Lands Act, apply to marine
pollution in the EEZ in various circumstances. There is no currently
anticipated need to seek additional authority under Article 211(6)(a).
Question 13. Article 69 provides for specific access rights for
land-locked states in a region.
a. For purposes of the Convention, how is a region defined?
b. Does the region in which the United States is located
contain any land-locked states?
Answer. The Convention does not define ``region'' for the purposes
of Article 69. In the context of an article providing for access rights
to the surplus of living marine resources in the EEZs of coastal States
in the same ``region,'' it is reasonable to interpret the term to
extend, at most, to the continent of the land-locked State.
As set forth in the Commentary, there are 42 landlocked States, 39
of which are in Africa, Asia, and Europe. In the western hemisphere,
the land-locked states are Bolivia and Paraguay. The United States has
interests in trade with landlocked states and in their economic
development; those interests are furthered by Part X of the Convention.
Question 14. Article 70 provides for specific access rights for
geographically disadvantaged states in a region.
a. Does the region in which the United States is located
contain any geographically disadvantaged states?
Answer. Article 70(2) defines a geographically disadvantaged State
as one that either can claim no EEZ of its own or one whose
geographical situation makes it dependent upon the exploitation of
living resources in the EEZs of other coastal States in its region or
subregion. The Convention does not define ``region'' for purposes of
Article 70, which, like Article 69, concerns exploitation of the
surplus of living marine resources in EEZs. In this context, as in the
context of Article 69, it would be reasonable to interpret the term to
extend, at most, to the continent of the geographically disadvantaged
State. The United States is not located in a region containing
geographically disadvantaged states.
Question 15. Article 196 requires States to prevent or control the
accidental or intentional introduction of alien or new species which
may cause significant and harmful changes to the marine environment.
a. Does this Executive Branch regard this Article as the only
provision in the Convention permitting regulatory measures with
regard to invasive species?
b. How will the United States satisfy its obligations under
this provision?
c. What is the standard that will be used to determine
``significant and harmful changes''?
Answer. Other provisions of the Convention (e.g., in Section 6 of
Part XII) potentially provide authority with regard to invasive
species, depending upon, among other things, the method by which the
invasive species are introduced into the marine environment.
The United States has taken steps, both domestically and
internationally, to address invasive species. Domestically, ships bound
for the St. Lawrence Seaway and the Great Lakes or the upper Hudson
River are required to conduct a mid-ocean exchange of ballast water,
outside the U.S. EEZ, to minimize the risks of introducing aquatic
invasive species into the Great Lakes and Hudson River ecosystems.
Ships unable to conduct this exchange for safety reasons are required
to retain their ballast water onboard. Regulations are being developed
to adopt a mandatory national program as soon as possible for ships
calling at any port in the United States. Work is also being done to
promote acceptable ballast water treatment technologies for use in
meeting national ballast water discharge standard for ships calling on
the United States.
Internationally, the United States is actively participating in the
negotiation of a new agreement under IMO auspices to address ballast
water management. This agreement, scheduled to be adopted in February
2004, is likely to establish a stringent ballast water discharge
standard for ships and require other important shipboard ballast water
management practices, as part of a global regime to reduce the spread
of aquatic invasive species from international shipping.
Question 16. Article 211(4) permits coastal states, within the
territorial sea, to adopt laws and regulations for the prevention,
reduction, and control of marine pollution from foreign vessels,
provided such laws and regulations do not ``hamper innocent passage''
of such vessels. Would, in the view of the Executive Branch, current
U.S. laws affecting the territorial sea that regulate marine pollution
hamper the right of innocent passage?
Answer. No. We would not regard existing U.S. laws and enforcement
practices as hampering the right of innocent passage. It should be
noted, in this regard, that passage is not considered innocent under
Article 19 of the Convention if a foreign ship engages, in the
territorial sea, in any act of willful and serious pollution contrary
to the Convention in the territorial sea.
Question 17. Article 226 limits the physical investigation of
foreign vessels. What is the U.S. interpretation of the meaning of the
term ``clear grounds'' as used in paragraph (a)(1)(i)? How does it
compare to the standard currently used by the Coast Guard for
inspecting foreign vessels of ``probable cause'' and/or ``reasonable
suspicion''?
Answer. Both Articles 220 and 226 use the term ``clear grounds for
believing.'' When the Convention was transmitted to the Senate, it was
determined that the United States could legitimately interpret the
``clear grounds'' requirement as being satisfied by our domestic
``reasonable suspicion'' standard. The Letter of Transmittal notes the
issue, and we continue to take this view in a proposed understanding
that the Administration has recommended to the Senate. The
understanding harmonizes U.S. law and practice with the Convention.
Question 18. Article 228(1) provides for suspending of proceedings
related to enforcement of rules against pollution by foreign vessels in
certain instances if the flag state is undertaking proceedings against
the vessel. How would this provision be implemented in the United
States?
Answer. The United States could move to continue, stay, or dismiss
an enforcement action without prejudice to allow the flag State an
opportunity to take proceedings to impose penalties in respect of
corresponding charges. Based on the significant experience in enforcing
U.S. law and the limited scope of this provision, we anticipate that
such a case will be exceedingly rare. In policy and practice, the
United States has the greatest interest in enforcing domestic law
closest to its shore. Article 228(1) is strictly limited to enforcement
actions involving pollution from foreign flag vessels beyond the
territorial sea, i.e., beyond 12 nautical miles from shore. As such,
Article 228(1) has no bearing on an enforcement action involving
pollution from foreign flag vessels within the territorial sea or
internal waters.
Additionally, and as is reflected in proposed understandings,
Article 228(1) has no impact on enforcement actions brought against
foreign flag vessels for non-pollution offenses, such as the making of
false statements in ship records (even when those statements are about
pollution that may have occurred outside U.S. waters).
Article 228(1) would be implemented after consultation among
cognizant federal agencies and after careful consideration of the
exceptions to this provision (a case of major damage to the coastal
State or if the flag State in question has repeatedly disregarded its
obligation to enforce applicable international rules and standards in
respect of violations committed by its vessels).
Question 19. Article 228(2) provides for a three year statute of
limitations with regard to penalties on foreign vessels for pollution.
What is the current U.S. statute of limitations in this regard? If the
statutes are different, which will govern? Does the Executive Branch
intend to propose legislation to harmonize them?
Answer. Article 228(2)'s three-year statute of limitations, which
is shorter than the five-year statute of limitations that applies to
many criminal environmental offenses, would apply to a narrow category
of cases (e.g., involving foreign flag vessels and pollution beyond the
territorial sea of the United States). Article 228(2) can be
implemented by Executive Branch action rather than by a limitation on
existing environmental statutes, which apply to a larger class of
offenders.
Question 20. Article 230 allows for non-monetary penalties if
violations of law are committed in the territorial sea that are ``a
willful and serious act of pollution'' in the territorial sea.
a. Please describe the current U.S. legal framework governing
enforcement of measures related to marine pollution in the
territorial sea.
b. Does current U.S. law permit civil penalties or use of a
court's injunctive powers? Are such penalties permitted under
Article 230?
c. How does the United States interpret ``willful and serious
act of pollution''? What is the applicable standard under U.S.
law? Are these standards, in the view of the Executive Branch,
equivalent? Why or why not?
d. Are there any applicable state laws in this regard? How,
if at all, would they be affected by Article 230?
Answer. There are a variety of U.S. environmental statutes that
regulate pollution from vessels in the territorial sea. Not all of
these statutes are relevant to Article 230, which applies only to
pollution from foreign flag vessels and not, for example, to other
types of pollution, such as by dumping. Most of these domestic statutes
authorize a range of penalties, sanctions, and other remedies,
including administrative, civil, and criminal.
Consistent with the Commentary submitted to the Senate in 1994, and
with a proposed understanding on Article 230, we interpret the
references to ``monetary penalties only'' to exclude only imprisonment
and not the range of other administrative, civil, and criminal
penalties, sanctions, and other remedies available under domestic
statutes.
The ``willful and serious'' standard set forth in Article 230(2)
uses terminology different in two respects from relevant U.S.
environmental criminal laws:
most environmental statutes make it a crime to ``knowingly''
engage in the conduct; the Clean Water Act, as amended, also
criminalizes certain negligent violations of that statute; and
most environmental statutes do not impose a requirement that
an offense be ``serious,'' although some prohibit pollution
that is harmful or hazardous.
In essence, however, U.S. law is largely consistent with the
Convention, and U.S. interpretations of key terms, as reflected in the
proposed understandings, will harmonize the terminology.
We have recommended that the United States express its
understanding, with respect to Article 230:
that it applies only to natural persons aboard the foreign
vessels at the time of the act pollution;
that the references to ``monetary penalties only'' exclude
only imprisonment;
that the requirement that an act of pollution be ``willful''
in order to impose non-monetary penalties would not constrain
the imposition of such penalties for pollution caused by gross
negligence;
that, in determining what constitutes a ``serious'' act of
pollution, a State may consider, as appropriate, the cumulative
or aggregate impact on the marine environment of repeated acts
of pollution over time; and
that, among the factors relevant to the determination
whether an act of pollution is ``serious,'' a significant
factor is non-compliance with a generally accepted
international rule or standard, e.g., such a rule or standard
under the MARPOL Convention.
In addition, the Administration has recommended that the United
States express its understanding that sections 6 and 7 of Part XII
(which include but are not limited to Article 230) do not limit the
authority of a State to impose penalties, monetary or non-monetary, for
nonpollution offenses, such as false statements, obstruction of
justice, and obstruction of government or of judicial proceedings,
wherever they occur, or for any violation of national laws and
regulations or applicable international rules and standards for the
prevention, reduction, and control of pollution of the marine
environment that occurs while a foreign vessel is in the internal
waters or in any port or offshore terminal under the jurisdiction of
that State.
Question 21. The Secretary of State's Letter of Submittal indicates
that when the United States signed the Agreement, it stated that doing
so would ensure the implementation of regimes that would be consistent
with U.S. seabed mining interests and consistent with existing U.S.
laws and regulations.
a. Please describe existing U.S. seabed mining interests and
how the regime is consistent with them.
b. Please detail which U.S. laws and regulations impact
seabed mining and how the regime is consistent with them.
Answer. The United States is interested in both a secure supply of
the materials found in manganese nodules (nickel, copper, manganese,
and cobalt) and in an acceptable law of the sea regime covering a broad
range of ocean uses, including deep seabed mining. A full presentation
of U.S. deep seabed mining interests, how the Convention and the
Agreement meet these interests, and the relationship to domestic law
and regulations can be found on pages 33-43 of the Commentary
accompanying the 1994 Letter of Transmittal.
There is one U.S. company with a U.S. deep seabed mining license.
The 1994 Agreement provides for recognition of the exploration rights
of this consortium by considering it under the treaty regime based on
arrangements no less favorable than those granted to holders of claims
already registered by Japan, France, Russia, India, Japan, China, South
Korea, and an Eastern European consortium. If the United States, as a
party to the Convention, certified that the U.S. license holder is
financially and technically qualified, and the license holder paid a
$250,000 application fee, the consortium would be entitled to
exploration rights to areas as large as 150,000 sq. km. for 15 years,
rights that can be renewed in five-year increments.
The Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401-1473;
``DSHMRA'') and its implementing regulations (15 CFR Parts 970, 971)
establish the permitting and licensing regime governing the U.S.
citizens engaged in exploration and commercial recovery of deep seabed
hard mineral resources. Although the DSHMRA predated the Convention and
Agreement, basic principles embodied in the Convention and the
Agreement are consistent with those in the DSHMRA (e.g., disclaimer of
sovereignty over the deep seabed; establishment of a mining regime
based on first-in-time priority of right; nondiscriminatory criteria;
and security of tenure through granting of exclusive rights for a fixed
period of time and with limitations of the ability to modify
authorizations).
The DSHMRA also provides for transition to an international
agreement that enters into force for the United States, with a view to
assuring continuity of any ongoing U.S. mining operations (30
U.S.C.1442). The only one existing U.S. exploration license holder has
not applied for commercial development permits under the DSHMRA. At
this time, there is no conflict between the area covered by the
existing U.S. license and those authorized for other States under the
Convention.
Question 22. Article 312 allows amendments to be adopted as part of
the Convention if a conference is convened. Article 313 allows
amendments to be adopted as part of the Convention if no nation objects
in a 12 month period. Article 316 provides for the ratification of
amendments by State parties.
a. Please describe the U.S. understanding of the process that
would be used during a conference to accept or reject
amendments.
b. What process will be used to ensure adequate Senate
consultation prior to an amendment conference convened under
Article 312?
c. What process will be used to ensure adequate Senate
consultation prior to a U.S. decision to object or not object
to a proposed amendment under Article 313?
d. Would any amendment approved under Article 312 and 313 be
submitted to the Senate for its advice and consent?
Answer. Concerning a conference convened pursuant to Article 312,
the decision-making procedure would be the same as that applicable at
the Third UN Conference on the Law of the Sea, unless decided otherwise
by the conference. The procedure used at that Conference, which is set
out in the Rules of Procedure contained in UN Document A/CONF.62/30/
Rev.3, provided for decision-making on matters of substance by
consensus wherever possible, with voting to take place only when a two-
thirds majority had determined that all efforts at reaching agreement
had been exhausted; in such case, approval of decisions required a two-
thirds majority. Decisions on matters of procedure are taken by
majority vote.
The Executive Branch would expect to consult with the Senate
regarding amendments proposed under either Article 312 or Article 313.
Amendments adopted under Articles 312 and 313 would be subject to
ratification or accession, noting that Article 316(5) provides that two
categories of amendments are to enter into force for all States Parties
one year following the deposit of instruments of ratification or
accession by 3/4 of the States Parties; such an amendment would under
the terms of the Convention enter into force for the United States even
where the Senate had rejected it. The Administration is considering the
constitutional aspects of this provision.
______
Responses of William H. Taft, IV, Legal Adviser, Department of State,
to Additional Questions for the Record Submitted by Senator John F.
Kerry
Question 1. If the U.S. becomes a party to UNCLOS, it will become
the ``law of the land.'' Please provide a detailed analysis of all
provisions that could raise issues of consistency with current U.S.
laws and regulations, including our enforcement practices, with respect
to the protection of the marine environment. Please include a
description of any obligations under UNCLOS for which additional
domestic authorities will be needed. Will the Administration be seeking
implementing legislation for any of these provisions and, if not, will
any steps be taken to address any such inconsistencies?
Answer. The Executive Branch, through the Department of Justice,
the Coast Guard, and the Environmental Protection Agency, has pursued a
vigorous, successful enforcement initiative to detect and deter
pollution from ships. In line with the policy of successive
Administrations since 1983 to act in accordance with the balance of
interests reflected in the Convention's provisions regarding
traditional uses of the oceans, U.S. marine pollution enforcement
efforts have been undertaken in a manner consistent with the Convention
as a matter of policy, including through appropriate consultations with
the State Department.
The United States has bean able to maintain an affective marina
pollution enforcement program consistent with the Convention's
provisions.
Part XII of the Convention establishes a legal framework for the
protection and preservation of the marine environment. It addresses
sources of marine pollution, such as pollution from vessels, seabed
activities, ocean dumping, and land-based sources. It promotes
continuing improvement in the health of the world's oceans. It also
effectively balances interests of States in protecting the environment
and natural resources with their interests in freedom of navigation and
communication.
The United States would implement Part XII through a variety of
U.S. laws, regulations, and practices, as noted below. We do not see a
present need for implementing legislation in this regard.
The provisions in Sections 1 through 4 of Part XII are quite
general, relating to, e.g., global and regional cooperation, technical
assistance, and monitoring and do not raise issues concerning
implementation under U.S. law.
Section 5 of Part XII sets forth the framework for the substantive
rules applicable to various sources of marine pollution. The provisions
contain a variety of obligations and authorizations relating to coastal
States, flag States, and/or all States (such as to cooperate to develop
global standards). The United States would meet its obligations under
these provisions through a host of existing laws, including, e.g., the
Clean Water Act; the Marine Protection, Research, and Sanctuaries Act;
the Solid Waste Disposal Act; CERCLA; FIFRA; the Coastal Zone
Management Act of 1972; the Outer Continental Shelf Lands Act; the Deep
Seabed Hard Minerals Resources Act; the Ports and Waterways Safety Act;
the Act to Prevent Pollution from Ships; the Oil Pollution Act; the
National Environmental Policy Act; and the Clean Air Act. The United
States is also an active participant in the development, principally
through the IMO, of cooperative agreements and arrangements to address
various sources of marine pollution.
Concerning Section 5's provisions on pollution from ships, you
specifically ask, in Question 4 below, about the double hull
requirement in the Oil Pollution Act of 1990 and its consistency with
Article 211. The United States applies and enforces these requirements
with respect to all ships entering the ports of the United States and
has that right under the Convention and general principles of
international law. Article 211 provides that coastal States may, with
respect to their EEZs, adopt laws to regulate pollution from vessels
``conforming to and giving effect to generally accepted international
rules and standards. . . .'' As noted in the answer to Question 4, the
House Conference Report relevant to the double hull requirement
indicates that section 3703(a) ``. . . is not intended to apply to
vessels transiting U.S. waters or transiting the Exclusive Economic
Zone. . . .'' As such, there would be no inconsistency between the U.S.
requirement and Article 211 of the Convention.
Concerning Section 6, these provisions deal specifically with the
allocation of enforcement responsibilities among coastal States, flag
States, and port States in various situations. In line with the policy
of successive Administrations since 1983 to act in accordance with the
balance of interests reflected in the Convention's provisions regarding
traditional uses of the oceans, U.S. practice has been to enforce its
marine pollution laws in a manner consistent with the Convention,
including the provisions in Section 6.
Certain issues do arise concerning the interaction between
provisions of Section 6 and U.S. law. As noted in your Question 5
below, both Articles 220 and 226 use the term ``clear grounds for
believing.'' When the Convention was transmitted to the Senate, it was
determined that the United States could legitimately interpret the
``clear grounds'' requirement as being satisfied by our domestic
``reasonable suspicion'' standard. The Letter of Transmittal notes the
issue, we continue to take this view, and the Administration will
recommend to the Senate that this understanding be among those
reflected in the resolution of advice and consent.
Concerning the safeguards set forth in Section 7:
As you note in your Question 5 below, there are a few issues
raised by Article 230. For example, certain interpretations of
this provision were attached to the Letter of Transmittal, such
as that the ``willful'' requirement would not constrain
penalties for gross negligence and that Article 230 applies
only to natural persons aboard the vessel at the time of the
discharge (and not, for example, to shore-based personnel or
corporate entities). The Administration will recommend to the
Senate that these understandings be among those reflected in
the resolution of advice and consent.
As you note in your Question 5 below, Article 228 sets forth
certain limitations on the institution or continuation of
proceedings, consistent with the notion that the flag State is
primarily responsible for ensuring compliance with the
Convention by vessels flying its flag or of its registry.
Article 228(2)'s three-year statute of limitations, which would
be shorter than the federal five-year statute of limitations,
would apply to a narrow category of cases and would not require
implementing legislation.
Sections 8 through 11 of Part XII, such as provisions related to
liability, sovereign immunity, and ice-covered areas, do not raise
particular issues of conflicts with U.S. law.
Question 2. Article 21 provides strong authorities to coastal
States to adopt laws and regulations for ships in innocent passage that
pass through their territories related to the management and protection
of living marine resources and the marine environment. However, it also
provides that such laws and regulations shall not apply to the
``design, construction, manning or equipment of foreign ships,'' unless
they are implementing ``generally accepted international rules or
standards.''
Are the terms ``design, construction, manning or equipment''
defined in the Convention?
Please provide examples of measures that the U.S. would
clearly view as not constituting ``design, construction,
manning or equipment'' measures.
Please discuss whether any restrictions on the discharge of
ballast water are necessarily ``design, construction, manning
or equipment'' standards that would prevent the U.S. from
regulating the discharge of ballast water from transiting ships
without international approval.
If the IMO does finalize an international agreement
addressing ballast water discharges, please confirm that the
U.S. will be able to enact measures that are more stringent
than those in the agreement.
Answer. The LOS Convention does not define the phrase ``design,
construction, manning or equipment'' or its constituent terms. Examples
of measures that the United States would not view as applying to the
design, construction, manning or equipment of ships (commonly referred
to as ``CDEM'') would include reporting requirements, record-keeping
requirements, quantitative restrictions on discharge of substances,
regulation of dumping of substances, ship routing measures, traffic
separation schemes, and speed limits.
With respect to potential restrictions on the discharge of ballast
water for ships transiting the territorial sea, there are many types of
restrictions that would, in fact, not apply to the design,
construction, manning or equipment of a ship. For example, we would not
consider restrictions on the discharge and/or uptake of ballast water
to apply to CDEM of a ship. Thus, the United States could potentially
establish no-discharge zones and/or specially designated discharge
zones for vessels in transit through the territorial sea or impose a
requirement that such ships perform ballast water exchange prior to
discharge, without hampering innocent passage. Moreover, most foreign
vessels in the U.S. territorial sea are traveling to or from U.S.
ports; the United States can and does impose CDEM restrictions as a
condition of entry to U.S. ports.
Concerning the IMO ballast water agreement currently under
negotiation, the United States is pushing for stringent standards to
address the environmental challenges posed by ballast water discharges.
Although we are hopeful that the agreement will be sufficiently
rigorous that additional measures will not be necessary, the agreement
would not affect the right of the United States under the Convention to
put in place a variety of more stringent measures, e.g., with respect
to U.S. vessels; as a condition of entry into U.S. ports; and with
respect to non-ODEM measures regulating innocent passage through the
territorial sea.
Question 3. There is an increasing focus on the oceans as a vector
for health risks to humans and the marine environment. Articles 21 and
33 provide that coastal States can prevent the infringement of their
sanitary laws and regulations. The Convention does not define
``sanitary measure.'' However, other international instruments, such as
the WTO agreement on sanitary and phytosanitary measures, include
measures to protect animal or plant life or health from ``risks arising
from the entry, establishment or spread of pests, diseases, disease-
carrying organisms or disease-causing organisms,'' as well as from
risks arising from ``additives, contaminants, toxins or disease-causing
organisms in foods, beverages or feedstuffs.''
Consistent with this language, please discuss whether the
U.S. could enforce laws aimed at restricting the introduction
of invasive species into the environment, discharges from
vessels of pollution such as sewage that can carry diseases,
and similar measures? Under this provision, could the U.S. also
enforce laws aimed at protecting fisheries, as a major source
of food, from discharges from ships of contaminants and
diseases?
Answer. The question refers to two articles of the Convention,
which present somewhat different issues. Article 21 addresses the
authority of a coastal State to adopt laws and regulations relating to
innocent passage through its territorial sea. Such laws may relate to
many coastal State interests, including, for example, conservation of
living resources of the sea, prevention of infringement of its
fisheries laws, preservation of the marine environment and the
prevention of pollution thereof, and prevention of infringement of its
sanitary laws and regulations. The hypothetical examples you give would
appear to fall within one or more of these categories of permissible
coastal State laws and regulations, provided they are applied in a
manner that is consistent with various other provisions of the
Convention (such as those relating to non-discrimination and non-
impairment of innocent passage).
Article 33 addresses the so-called ``contiguous zone,'' which is an
area adjacent to and seaward of the territorial sea that may extend out
to 24 nautical miles from coastal baselines. In the case of the United
States, which has declared an EEZ, the contiguous zone is located
within the EEZ. Article 33 provides that, in the contiguous zone, the
coastal State may exercise the control necessary to ``prevent
infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea (emphasis added).''
In this respect, Article 33 tracks almost verbatim (``laws and
regulations'' versus ``regulations'') Article 24 of the 1958
Territorial Sea and Contiguous Zone Convention, to which the United
States is a party. Accordingly, one of the purposes of this provision
is to permit the coastal State to take certain actions against foreign
vessels in its contiguous zone to prevent infringement of the coastal
State's sanitary laws and regulations within its territory or
territorial sea. In the case of the examples you cite, the location and
nature of the conduct would be relevant to the consideration of which
provisions of the Convention would apply. With respect to activities
subject to Part XII of the Convention, the regime of the EEZ set forth
in the Convention includes elaborate provisions regarding the right of
the coastal State to protect and preserve the marine environment.
Moreover, most foreign vessels in the U.S. contiguous zone are
traveling to or from U.S. ports; consistent with the Convention, the
United States can and does impose restrictions as a condition of entry
to U.S. ports.
Question 4. Article 56 provides that in the EEZ, the coastal State
has sovereign rights for the purpose of ``exploring and exploiting,
conserving and managing the natural resources, whether living or non-
living,'' and jurisdiction with respect to the ``protection and
preservation of the marine environment.'' Please provide examples of
such measures.
Answer. Your question refers to subparagraphs 1(a) and 1(b) of
Article 56 of the Convention. Examples of measures implementing
subparagraph 1(a) include those asserting exclusive management
authority over fisheries. For the United States, such measures are
contained, for example, in the Magnuson-Stevens Fishery Conservation
and Management Act, which provides for exclusive U.S. fisheries
management authority over all fishery resources up to the 200-mile
limit of the U.S. EEZ. Concerning Article 56(1)(b), which accords
jurisdiction as provided for in the relevant provisions of the
Convention with regard to the protection and preservation of the marine
environment, an example of a measure would be a coastal State law
regulating pollution by dumping in the EEZ, consistent with Articles
210 and 216 and other relevant aspects of Part XII of the Convention.
For the United States, dumping is controlled by the Marine
Protection, Research, and Sanctuaries Act (Ocean Dumping Act), which
implements U.S. obligations under the Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other Matter (the so-called
London Convention). Oil and gas operations in the U.S. EEZ are
controlled by the Outer Continental Shelf Lands Act, which establishes,
among other things, rigorous pollution prevention requirements.
Question 5. Article 211 states that coastal States may adopt laws
and regulations for the prevention, reduction and control of pollution
from vessels in EEZ ``conforming to and giving effect to generally
accepted international rules and standards established through the
competent international organization.''
Is it clear that this clause means that in the absence of
any international agreement, the U.S. could regulate pollution
from vessels not entering a U.S. port in the EEZ, outside of
the territorial sea? Would the double-hull requirements of the
Oil Pollution Act of 1990 be consistent with this clause? Is it
clear whether ``conforming to'' sets a ceiling or merely a
floor on what the U.S. can do domestically?
Answer. The Convention's provisions relating to pollution from
vessels are a significant part of the overall balance between coastal
and maritime interests the Convention is designed to maintain over
time. Paragraph 1 requires States to establish international rules and
standards to prevent, reduce and control vessel source pollution. In
that regard, the IMO has developed several conventions that, directly
or indirectly, address vessel source pollution, including the MARPOL
Convention and its several annexes, as well as the SOLAS Convention,
the International Convention on Standards of Training, Certification
and Watchkeeping (STCW), and the International Convention on Oil
Pollution Preparedness, Response, and Cooperation.
In recognition of a coastal State's sovereignty within its
territorial sea, Article 21 affirms the authority of the coastal State
to establish requirements relating to pollution from foreign vessels,
including vessels exercising the right of innocent passage, with
certain provisos. In the EEZ, where all States' interest in navigation
is greater than in the territorial sea, a coastal State's requirements
relating to pollution from foreign vessels must conform to and give
effect to generally accepted international rules and standards. This
approach is designed to avoid a global patchwork of unilateral
requirements in various EEZs and to protect freedom of navigation.
There are two respects in which generally accepted international
rules and standards (or the absence of any such rules and standards)
set a ``floor:''
First, States are free to adopt laws for the regulation of
pollution from vessels flying their flag that have ``at least''
the same effect as that of generally accepted international
rules and standards; thus, a State could choose to impose more
stringent standards upon its own vessels.
Second, where the international rules and standards are
inadequate to meet special circumstances and a coastal State
considers that a particular area of its FEZ requires greater
protection, a coastal State may pursue IMO approval for
designation of one or more special areas, as well as mandatory
measures that exceed international rules and standards.
Concerning the double-hull requirement of the Oil Pollution Act of
1990, there would be no inconsistency with Article 211. The House
Conference Report indicates that section 3703(a) ``. . . is not
intended to apply to vessels transiting U.S. waters or transiting the
Exclusive Economic Zone in innocent passage . . . .''
Question 6. UNCLOS includes a number of provisions that seem to
have the potential to limit our ability to enforce domestic law, e.g.,
the requirement of Article 220(5) of a showing of ``substantial
discharge causing or threatening significant pollution of the marine
environment,'' the requirement of Article 226 that inspections of
foreign vessels be limited to a paper review, unless there are ``clear
grounds'' for believing that the vessel condition does not comport with
its certificates, and the restriction in Article 230 of non-monetary
(e.g., criminal penalties) for violating national pollution laws to
cases of ``willful or serious acts.'' Please explain how the U.S. can
interpret Articles 220, 226, 228 and 230 in a manner that will not
limit our current practices and our ability to enforce U.S. laws.
Answer. See answer to Question 1.
The Convention's provisions relating to pollution from vessels,
including its provisions concerning coastal State enforcement against
foreign flag vessels, are a significant part of the overall balance
between coastal and maritime interests. In line with the policy of
successive Administrations since 1983 to act in accordance with the
balance of interests reflected in the Convention's provisions regarding
traditional uses of the oceans, U.S. practice has been to enforce its
marine pollution laws in a manner consistent with the Convention.
The specific issues you raise were considered in the context of
transmitting the Convention to the Senate and were addressed in the
commentary attached to the Letter of Transmittal:
Concerning the ``clear grounds'' requirement in Articles 220
and 226, when the Convention was transmitted to the Senate, it
was determined that the United States could legitimately
interpret the ``clear grounds'' requirement as being satisfied
by our domestic ``reasonable suspicion'' standard. The Letter
of Transmittal notes the issue.
Concerning Article 230, the Letter of Transmittal noted that
``[t]he requirement that the act be `willful' would not
constrain penalties for gross negligence'' and further that
``Article 230 applies only to natural persons aboard the vessel
at the time of discharge.''
The Letter of Transmittal further notes, with respect to
Article 228, that the requirement that a coastal State suspend
enforcement proceedings against a foreign vessel if the flag
State institutes its own proceedings within a specific time
period is consistent with the notion that the flag State is
primarily responsible for ensuring compliance with the
Convention of vessels flying its flag or of its registry.
The Administration will recommend to the Senate that these
understandings be among those reflected in the resolution of advice and
consent.
Question 7. Please discuss whether UNCLOS could be used to
challenge U.S. trade measures under the Pelly Amendment, Section 609 of
P.L. 101-162, and other laws to protect species such as sea turtles and
dolphins from destructive fishing practices?
Answer. The Convention would not provide a basis for a challenge to
U.S. trade measures designed to promote or require compliance with
conservation and environmental laws, norms, and objectives, such as the
protection of sea turtles and dolphins. The Administration will
recommend to the Senate that the resolution of advice and consent
reflect that nothing in the Convention limits the right of a State to
prohibit or restrict imports into its territory in order to, inter
alia, promote or require compliance with environmental and conservation
laws, norms, and objectives.
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